COl€TII®Hai^li '  mSTORY 


OF  THE 


lotiIMa  purchase 


EVERETT  SOMERVILLE  BROWN 


!>• 


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UNIVERSITY  OF  CALIFORNIA 
PUBLICATIONS  IN  HISTORY 


HERBERT  E.  BOLTON 

EDITOR 


VOLUME  X 


THE 

CONSTITUTIONAL  HISTORY 

OF  THE 

LOUISIANA  PURCHASE 

1803-1812 


BY 

EVERETT  SOMERVILLE  BROWN,  Ph.D. 


UNIVERSITY  OF  CALIFORNIA  PRESS 
BERKELEY 
1920 


Ba§ct^l^  ^lorary 


PREFACE 

One  of  the  most  striking  features  of  the  history  of  the  United 
States  is  the  gradual  extension  of  its  boundaries  westward  and 
the  successful  operation  of  a  colonial,  or  territorial,  system  of 
government.  Hardly  had  the  Constitution,  which  contained  no 
specific  grant  of  power  to  acquire  territory,  been  put  into  effect 
when  the  first  step  in  the  acquisition  of  foreign  territory  was 
made.  The  purpose  of  this  monograph  is  to  discuss  the  most 
important  of  the  constitutional  questions  which  arose  as  a  con- 
sequence of  the  purchase  of  Louisiana,  and  to  show  how  the 
statesmen  and  legislators  in  charge  of  affairs  at  that  time  inter- 
preted the  Constitution  in  answering  those  questions.  Much  has 
been  written  on  the  Louisiana  Purchase  but  no  connected^  nar- 
rative of  its  constitutional  aspects  has  hitherto  appeared. 

The  writer  believes  that  he  has  added  many  important  details 
to  the  printed  accounts  of  United  States  history.  For  instance, 
he  has  given,  for  the  first  time,  the  detailed  story  of  the  Senate 
debate  on  the  Breckinridge  Bill.  Then,  too,  there  is  much  to 
be  learned  of  the  struggle  between  correct  theory  and  actual 
practice  in  government  from  tracing  Jefferson's  plans  for  the 
settlement  and  government  of  Louisiana.  The  status  of  the 
inhabitants  of  territories — so  fruitful  a  theme  for  controversy 
even  to  the  present  day;  the  control  of  slavery  and  the  slave- 
trade  by  Congress,  set  forth  with  startling  bitterness  in  the 
Senate  debate  on  the  Breckinridge  Bill;  and  the  Indian  and 
land  questions,  always  incidental  to  American  westward  expan- 
sion, all  have  new  light  shed  upon  them. 

A  certain  limitation  should  here  be  made.  This  study  has 
been  confined  principally  to  the  lower  part  of  the  province 
purchased  from  France,  that  which  was  organized  as  Orleans 


C  onstituiional  History  of  the  Louisiana  Fur  chase 

Territory  and  which  later  entered  the  Union  as  the  state  of 
Louisiana.  Occasional  reference  is  made  to  Upper  Louisiana 
but  to  have  traced  the  constitutional  history  of  the  entire  area 
known  as  Louisiana  would  have  involved  entering  a  field  almost 
limitless  in  extent.  The  writer  hopes,  however,  to  make  further 
investigation  of  the  constitutional  history  of  the  territorial 
expansion  of  the  United  States. 

In  writing  this  monograph,  much  hitherto  unpublished  man- 
uscript material  has  been  utilized.  Personal  investigation  was 
conducted  in  the  following  places:  the  University  of  California 
Library;  the  Bancroft  Library;  the  Cabildo  (home  of  the  Louis- 
iana Historical  Society),  and  the  City  Hall,  New  Orleans;  the 
Library  of  Congress,  especially  the  Manuscript  Division;  the 
Bureau  of  Rolls  and  Library  of  the  State  Department,  Washing- 
ton, D.  C. ;  the  Boston  Public  Library ;  the  Massachusetts 
Historical  Society  Library ;  the  Athenaeum ;  Harvard  University 
Library;  the  American  Antiquarian  Society  Library,  Worcester, 
Mass. ;  the  New  Hampshire  Historical  Society  Library,  and  the 
New  Hampshire  State  Library,  both  located  at  Concord ;  and  the 
New  York  Public  Library. 

Much  new  information  was  obtained  from  the  William 
Plumer  manuscripts,  a  mine  of  hitherto  little-consulted  material. 
William  Plumer  was  born  at  Newburyport,  Massachusetts,  in 
1759,  but  moved  with  his  parents  to  Epping,  New  Hampshire, 
in  1768.  He  was  given  a  liberal  education,  following  which  he 
engaged  in  the  practice  of  law.  Entering  the  political  field, 
he  served  for  a  number  of  years  in  the  state  legislature,  and  rose 
to  the  position  of  presiding  officer  of  the  house  of  representa- 
tives and,  later,  of  the  senate.  He  was  a  member  of  the  state 
constitutional  convention  in  1791-1792;  served  as  United  States 
senator  from  New  Hampshire  from  December  6,  1802,  to  March 
3,  1807 ;  was  governor  of  his  state  for  the  terms  of  1812-1813 


Preface 

and  1816-1819;  and,  as  presidential  elector  in  1820,  cast  the 
single  vote  against  James  Monroe.  Plumer  devoted  the  later 
years  of  his  life  to  literature.    He  died  in  1850. 

Having  decided  early  in  life  to  write  a  history  of  the  United 
States,  Plumer  made  use  of  every  opportunity  to  collect  mater- 
ials to  that  end.  His  ambition  as  a  historical  writer  was  not 
gratified,  but  he  left  a  vast  quantity  of  manuscripts,  invaluable 
for  the  history  of  his  period.  A  small  part  of  this  collection 
was  used  by  William  Plumer  Jr.  in  his  Life  of  William  Plumer. 
In  that  book,  however,  the  younger  Plumer  practically  ignored 
the  very  valuable  memorandum  which  Senator  Plumer  kept  of 
the  debates  in  the  United  States  Senate  from  1803  to  1807.  This 
memorandum  gives  detailed  information  on  government  matters 
seemingly  nowhere  else  obtainable.  Neither  the  Government 
nor  the  newspapers  at  that  time  kept  a  full  report  of  the  debates 
in  Congress.     Especially  was  this  true  of  those  of  the  Senate. 

A  part  of  this  ''Memorandum"  was  contributed  by  the 
present  writer  to  the  American  Historical  Review,  XXII  (1917), 
340-364.  No  other  writer,  so  far  as  I  can  ascertain,  has  exten- 
sively used  the  Plumer  "Memorandum."  In  the  monograph 
a  differentiation  in  citation  is  made  between  the  ' '  Memorandum ' ' 
and  Plumer 's  letters,  the  latter  being  referred  to  as  MS 8. 
Plumer 's  papers  have  not  been  arranged  in  any  more  definite 
order  than  that  in  which  he  left  them,  which  makes  citation  of 
them  rather  difficult. 

Other  important  manuscripts  used  were  the  Claiborne  Papers, 
consisting  of  six  volumes  entitled  "Claiborne's  Correspondence 
relative  to  Orleans  Territory, ' '  and  one  volume,  ' '  Orleans  Terri- 
tory, Miscellaneous."  These  volumes  in  the  Bureau  of  Rolls 
and  Library  in  the  Department  of  State  in  Washington,  contain 
Governor  Claiborne's  reports  of  the  territorial  government  of 
Louisiana,   or,  to  be  more   exact,   of   Orleans   Territory,   from 


Constitutional  History  of  the  Louisiana  Purchase 

December,  1803,  when  the  province  was  turned  over  to  the 
American  commissioners,  until  the  admission,  in  1812,  of 
Orleans  Territory  into  the  Union  as  the  state  of  Louisiana. 
The  volume  of  miscellaneous  papers  contains  a  few  items  of  as 
late  date  as  1815.  An  idea  of  the  number  of  letters  in  the 
Claiborne  collection  and  the  subject  matter  contained  in  them, 
can  be  obtained  by  consulting  David  W.  Parker,  Calendar  of 
papers  in  Washington  relating  to  the  territories  of  the  United 
States,  Washington,  D.  C,  1911  (Publication  number  148  of  the 
Carnegie  Institution).  Copies  of  Claiborne *s  letters  and  papers 
have  been  preserved  in  Jackson,  Mississippi.* 

From  the  Jefferson,  Madison,  and  Monroe  papers  were 
gleaned  many  items  not  contained  in  the  published  writings  of 
these  statesmen.  Especially  was  this  true  of  letters  which  had 
been  available  only  in  part  in  printed  form.  The  following 
bibliographical  aids  were  of  much  assistance  in  the  examination 
of  the  voluminous  collections  just  cited : 

Calendar  of  the  Correspondence  of  Thomas  Jefferson,  Part  I,  Letters  from 
Jefferson.  Bulletin  No.  6  of  the  Bureau  of  Rolls  and  Library  of  the 
Department  of  State,  Washington,  1894. 

Ibid.,  Part.  II,  Letters  to  Jefferson.  Bulletin  No.  8  of  the  same  depart- 
ment.    Washington,  1895. 

Ibid.,  Part  III,  Supplementary.  Bulletin  No.  10  of  the  same  department. 
Washington,  1903.  (Calendar  of  papers  received  after  the  publication 
of  Bulletin  No.  8.) 


*  See  the  Third  Anmoal  Beport  of  the  Director  of  the  Itepartment  of 
Archives  and  History  of  the  State  of  Mississippi  from  October  1,  1903, 
to  October  1,  1904,  Dunbar  Rowland,  director.  Nashville,  Tenn.,  1905.  Also 
Eleventh  and  Twelfth  Beport s  of  the  Director  of  the  Departm^ent  of  Archives 
and  History  of  the  State  of  Mississippi  from  November  1,  1911,  to  Octo- 
ber 31,  1912.  An  Official  Guide  to  the  Historical  Materials  in  the  Mississippi 
Department  of  Archives  and  History,  Dunbar  Rowland,  LL.D.,  director. 
Nashville,  Tenn.,  1914. 

At  the  time  when  this  monograph  was  being  written,  the  Official  Letter 
BooJcs  of  W.  C.  C.  Cl-aiborne,  1801-1816,  edited  by  Dunbar  Rowland  (6  vols. 
Jackson,  Miss.,  1917)  had  not  yet  appeared.  Many  of  the  Claiborne  letters 
cited  in  manuscript  form  are  now  available  in  print. 


Preface 

Calendar  of  the  Correspondence  of  James  Monroe.     Bulletin  No.  2  of  the 

same  department.     Washington,  1893. 
Calendar  of  the   Correspondence   of  James  Madison,     Bulletin   No.   4   of 

the  same  department.     Washington,  1894. 
Arrangement  of  the  Tapers  of  Madison,  Jefferson,  Hamilton,  Monroe,  and 

FranTclin.     Bulletin  No.  5  of  the  same  department.     Washington,  1894. 

A  number  of  unpublished  letters  bearing  on  the  subject  of 
Louisiana  were  found  in  the  Pickering  Papers,  in  the  library  of 
the  Massachusetts  Historical  Society.  Consultation  of  the  Pick- 
ering collection  also  afforded  the  opportunity  of  correcting  or 
verifying  dates  and  names  used  erroneously  or  doubtfully  by 
editors  of  the  printed  works  of  some  of  Pickering's  correspon- 
dents. The  Historical  Index  to  the  Pickering  Papers  in  the 
Massachusetts  Historical  Society,  Collections,  Sixth  Series,  III, 
Boston,  1896,  was  of  great  assistance  in  the  use  of  these  papers. 

Occasional  important  letters  were  picked  up  in  odd  places. 
An  excellent  example  is  the  Nahum  Mitchell  letter,  quoted  in 
Chapter  VIII,  which  was  found  among  the  Bobbins  Papers. 
The  present  writer  is  unaware  of  its  ever  having  been  previously 
used. 

Needless  to  say,  the  published  writings  of  the  statesmen 
already  mentioned,  as  well  as  many  others,  were  carefully  con- 
sulted.   A  full  list  is  given  in  the  bibliography. 

The  controversial  side  of  the  Louisiana  question  is  well 
illustrated  by  contemporaneous  printed  pamphlets  and  news- 
papers. On  the  publications  of  this  type,  the  citations  in  the 
monograph  and  the  bibliography  afford  sufficient  comment. 

Secondary    authorities    were    used    only    to    substantiate    a 

.statement  already  obtained  from  primary  sources,  or  when  the 

author  of  the  book  cited  was  himself  quoting  primary  authorities. 

In  this  respect  the  books  most  used  were  those  of  Henry  Adams 

and  Charles  Gayarre. 


Const iUvtiotuil  History  of  the  Louisimm  Purchase 

The  writer  wishes  to  thank  all  those  librarians  and  archivists 
wko  made  possible  his  search  for  materials.  In  particular,  in 
this  respect,  does  he  owe  much  to  the  never-failing  kindness  of 
Mr.  John  C.  Fitzpatrick  of  the  Manuscript  Division  of  the 
Library  of  Congress.  Acknowledgments  are  also  due  to  Pro- 
fessor Frederick  J.  Teggart  of  the  University  of  California  for 
suggestive  criticism;  and  to  Professor  Herbert  E.  Bolton  and 
the  editorial  committee  of  the  University  of  California  Press  for 
the  editing  of  the  monograph.  The  writer's  wife  was  especially 
helpful  in  the  arduous  task  of  copying  manuscripts  and  in  read- 
ing proof.  Finally,  the  writer  desires  to  express  his  appreciation 
of  the  kindly  and  scholarly  assistance  of  Dr.  Eugene  Irving 
McCormac  of  the  University  of  California,  under  whose  guidance 
this  study  was  made. 

Everett  Somerville  Brown. 

Washington,  D.C,  December  18,  1918. 


CONTENTS 

PAGES 

Preface  v-x 

CHAPTER  I 
Events  Leading  to  the  Purchase 1-13 

CHAPTER  II 
The  Constitutional  Right  to  Acquire  Territory:    Contempo- 
rary Opinion  14-35 

CHAPTER  III 

The  Status  of  the  Acquired  Territory  :  Contemporary  Opinion       36-48 

CHAPTER  IV 

The  Debate  on  the  Treaty:  the  Treaty-Making  Power 49-61 

CHAPTER  V 
The  Debate  on  the  Treaty.     (1)  The  Right  to  Acquire  Terri- 
tory.    (2)  Status  of  the  Acquired  Territory.     (3)  Commer- 
cial Privileges  TJ,nder  the  Treaty 62-83 

CHAPTER  VI 
The  Government  of  the  Acquired  Territory 84-100 

CHAPTER  VII 

The  Debate  in  the  Senate  on  the  Louisiana  Government  Bill  101-131 

CHAPTER  VIII 
The  Louisiana  Government  Bill  in  the  House 132-14G 

CHAPTER  IX 
Problems  of  Territorial  Government 147-169 

CHAPTER  X 

Demands  for  Statehood  and  the  Question  of  West  Florida  ....  170-187 

CHAPTER  XI 
Admission  to  Statehood 188-196 

Bibliography 197-209 

Appendix    210-234 

Index 235 


XI 


CHAPTER  I 
EVENTS   LEADING   TO   THE   PURCHASE 

The  early  years  of  the  nineteenth  century  were  crucial  ones 
for  the  new  government  of  the  United  States.  The  ''critical 
period"  under  the  Articles  of  Confederation  had  led  to  the 
demand  for  a  more  effective  plan  of  government,  and  the  Con- 
stitution was  the  result.  The  ratification  of  this  instrument  was, 
however,  but  the  beginning  of  another  period  of  experiment ;  or 
better,  perhaps,  another  chapter  in  the  history  of  the  old 
experiment.  The  danger  of  disunion  and  consequent  disinte- 
gration had  become  apparent  to  all  thinking  citizens  of  the 
young  nation.  Such  dangers  must  in  future  be  avoided  or  inde- 
pendence threatened  to  become  a  curse  rather  than  a  blessing. 
Did  the  Constitution  offer  the  solution  of  these  perplexing  prob- 
lems? It  was  a  well  known  fact  that  the  Constitution  was  the 
result  of  compromises  and  that  it  had  been  ratified  by  the  people 
in  the  states  only  after  a  long  campaign  and  in  the  face  of 
strong  opposition.  The  Constitution  had  merely  laid  down  a 
framework  of  government ;  a  framework  which  had  to  be  elab- 
orated into  a  working  system.  The  powers  of  the  Federal 
Government  must  be  made  strong  enough  to  meet  the  needs 
of  the  country  as  a  whole,  but  could  this  be  done  without  infring- 
ing upon  the  constitutional  rights  claimed  by  the  states  ?  What 
were  the  rights  of  the  ''original  partners"  to  the  compact? 
Could  their  relative  importance  in  the  councils  of  state  be 
altered  without  their  consent,  given  by  their  legislatures  or 
by  conventions  called  for  that  purpose? 

Only  fourteen  years  after  the  ratification  of  the  Constitution 
a  tremendous  new  problem  was  thrust  upon  the  infant  govern- 
ment for  settlement.  This  was  the  acquisition  of  Louisiana, 
a  vast,  undeveloped,  foreign  country,  equal  in  size  to  the  entire 


2  Constitutional  History  of  the  Louisiana  Purchase 

United  States  of  that  day.  What  would  be  its  effect  on  the 
destinies  of  the  Republic? 

Undoubtedly  the  purchase  of  Louisiana  was  one  of  the  most 
momentous  steps  in  the  history  of  our  country.  In  its  broader 
aspects,  viewed  from  the  present  time,  it  insured  to  the  American 
people  the  opportunity  of  westward  expansion,  and  through  the 
ownership  of  a  vast  public  domain  helped  in  the  upbuilding  of  a 
broader  national  feeling  and  occasioned  the  downfall  of  the 
policy  of  strict  construction  of  the  Constitution.^  In  its  own 
day  the  acquisition,  after  the  establishment  of  independence  and 
the  Constitution,  was  hailed  as  "the  greatest  political  blessing 
ever  conferred  on  these  states."^ 

Yet  the  purchase  of  Louisiana  incidentally  raised  many  con- 
stitutional points,  the  settlement  of  which  has  been  of  the  utmost 
significance  in  the  constitutional  history  of  the  United  States. 
In  the  words  of  Professor  Frederick  J.  Turner :  • "  When  the 
whole  sweep  of  American  history  and  the  present  tendencies  of 
our  life  are  taken  into  view,  it  would  be  possible  to  argue  that 
the  doctrines  of  the  Louisiana  Purchase  were  farther-reaching 
in  their  effect  upon  the  Constitution  than  even  the  measures 
of  Alexander  Hamilton  or  the  decisions  of  John  Marshall."^ 
To  this  strong  statement  may  be  added  that  of  a  well  known 
expositor  of  the  Constitution,  who  asserts  that  the  purchase  of 
Louisiana  from  France  "gave  such  direction  to  the  subsequent 
thought  of  the  people  and  led  to  such  marshaling  of  political 
forces,  that  nearly  all  the  leading  events  of  later  American 
history  were  either  traceable  to  or  in  some  measure  shaped  or 
determined  by  it.''* 


1  Turner,  *  *  Significance  of  the  Frontier  in  American  History, ' '  in  Amer- 
ican Historical  Association,  Annual  Beport,  1903,  218. 

2  David  Eamsay,  An  Oration  on  the  Cession  of  Louisiana  to  the  United 
States, . . .  May  12,  1804, . . .   Charleston,  S.  C. 

3  Turner,  * '  Significance  of  the  Louisiana  Purchase, ' '  in  Eeview  of  Ee- 
views,  XXVII,  584. 

4  Cooley,  * '  The  Acquisition  of  Louisiana, ' '  in  Indiana  Historical  Society, 
FuMications,  II,  65. 


Events  Leading  to  the  Purchase  3 

What  did  the  men  who  helped  to  frame  the  Constitution 
think  of  the  questions  involved  in  the  acquisition  and  govern- 
ment of  Louisiana?  What  interpretation  of  that  instrument 
was  made  by  members  of  Congress  when  the  question  of  the 
right  to  acquire  and  govern  foreign  territory  came  before  them  ? 
The  writings  of  the  statesmen  concerned,  and  the  debates  in 
Congress  show  the  great  interest  displayed  in  the  problems 
which  arose ;  and  the  settlement  of  these  problems  has  served  as 
the  basis  for  similar  decision  in  later  cases.  Details  might  vary, 
but  in  the  broader  aspects  of  constitutional  interpretation  arising 
from  the  acquisition  of  foreign  territory  by  the  United  States, 
the  Louisiana  Purchase  served  as  the  great  precedent. 

The  events  leading  to  the  purchase  of  Louisiana  may  be 
treated  briefly.  The  necessity  for  the  control  of  a  place  of 
deposit  for  merchandise  on  the  lower  Mississippi  had  been  recog- 
nized by  a  large  part  of  the  people  of  the  United  States.  A 
widespread  alarm  was  therefore  aroused  when,  through  the  ces- 
sion of  the  Louisiana  territory  by  Spain  to  France,  a  stronger 
power  came  into  contact  with  the  United  States  in  that  region. 
President  Jefferson  in  his  second  annual  message  to  Congress, 
December  15,  1802,  declared:  "The  cession  of  the  Spanish 
Province  of  Louisiana  to  France,  which  took  place  in  the  course 
of  the  late  war,  will  if  carried  into  effect,  make  a  change  in 
the  aspect  of  our  foreign  relations  which  will  doubtless  have 
just  weight  in  any  deliberation  of  the  Legislature  connected 
with  that  subject."^ 

Upon  the  first  rumors  of  such  a  transfer  of  Louisiana  from 
Spain  to  France,  Secretary  of  State  Madison  had  written  to 
Robert  R.  Livingston,  United  States  minister  to  France,  asking 
him  to  find  out  whether  or  not  these  rumors  were  true;  and  if 
so,  to  ascertain  whether  France  could  not  be  induced  to  transfer 
the  Floridas  to  the  United  States,  provided  they  were  included 
5  Eichardson,  Messages  and  Papers  of  the  Presidents,  I,  343. 


4  Constitutimuil  History  of  the  Louisimia  Purchase 

in  the  cession.  At  the  very  least,  West  Florida  was  to  be 
obtained,  if  possible.  If  the  Floridas  were  not  included  in  the 
transfer,  Livingston  was  to  make  every  effort  to  obtain  the 
consent  of  France  and  Spain  to  their  cession  to  the  United 
States.  Should  he  learn  that  the  Floridas  were  still  in  the 
hands  of  Spain,  Livingston  was  to  act  in  harmony  with  Charles 
Pinckney  at  Madrid  in  an  attempt  to  procure  them.*^  Livingston 
immediately  opened  negotiations  with  the  French  Minister  of 
Exterior  Relations.'^  Spain  insisted  that  the  Floridas  were  not 
included  in  the  cession,  while  France  held  that  they  were.^  Liv- 
ingston continued  negotiations.  In  answer  to  a  question  from 
Joseph  Bonaparte  whether  the  United  States  would  prefer  the 
Floridas  to  Louisiana,  Livingston  replied  that  his  Government 
had  no  wish  to  extend  its  boundary  across  the  Mississippi.  All 
that  was  sought  was  security,  not  extension  of  territory.^ 

While  these  negotiations  were  being  carried  on  under  the 
direction  of  the  President,  Congress  was  not  idle.  On  January 
4,  1803,  Roger  Griswold  of  Connecticut  read  the  part  of  the 
President's  message  of  December  15  relating  to  the  cession  of 
Louisiana  to  the  French  and  made  the  following  motion: 

Resolved,  That  the  President  of  the  United  States  be  requested  to  direct 
the  proper  officer  to  lay  before  the  House  copies  of  such  official  documents 
as  have  been  received  by  this  Government,  announcing  the  cession  of  Louis- 
iana to  France,  together  with  a  report  explaining  the  stipulations,  circum- 
stances, and  conditions,  under  which  that  province  is  to  be  delivered  up; 
unless  such  documents  and  reports  will,  in  the  opinion  of  the  President, 
divulge  to  the  House  particular  transactions  not  proper  at  this  time  to  be 
communicated. 

Griswold  stated  that  although  he  did  not  desire  from  the  Presi- 
dent papers  that  might  be  improper  at  the  time,  nevertheless 


6  Madison  to  Livingston,   September   28,   1801,  in  Annals  of  Congress, 
7  Cong.,  2  Sess.   (1802-1803),  Appendix,  1014-1016. 
T  Ibid.,  1022-1023. 

8  Ibid.,  1052. 

9  Livingston  to  the  President,  October  28,  1802,  in  ibid.,  1055. 


Events  Leading  to  the  Purchase  .      5 

he  considered  the  subject  very  important,  and  one  that  might 
require  from  the  Legislature  further  protection  for  the  frontier 
facing  the  ceded  province. ^^ 

When  the  question  came  up  for  discussion  on  the  following 
day,  John  Randolph  of  Virginia  moved  to  commit  the  resolution 
to  the  Committee  of  the  Whole  on  the  state  of  the  Union.^^ 
This  was  opposed  by  Griswold,  who  claimed  for  the  House  all 
the  information  in  the  power  of  the  Executive  to  give.  Referring 
the  resolution  to  the  committee  would  be  putting  it  to  sleep  and 
the  Legislature  would  be  deprived  of  information  it  ought  to 
possess.^-  Rutledge  of  South  Carolina  declared  that  "did  he 
consider  that  the  giving  publicity  to  any  information  on  this 
subject  would  in  the  least  interfere  with  the  Constitutional 
functions  of  the  President,  he  would  be  the  last  man  to  support 
the  resolution"  of  Griswold.  He  could  see  no  impropriety, 
however,  in  asking  the  President  for  information  relative  to 
that  which  he  had  stated  as  a  fact ;  that  is,  as  much  information 
as  the  president  considered  it  expedient  to  give.^^ 

Samuel  Smith  of  Maryland  turned  to  the  case  of  the  British 
Treaty  of  1794  (Jay's  Treaty)  as  a  precedent.  At  that  time, 
he  said,  one  party  in  the  House  had  called  for  the  papers  on  the 
principle  that  the  negotiations  having  been  terminated,  the  House 


-^^  Annals  of  Congress,  7  Cong.,  2  Sess'.   (1802-1803),  312. 

11  lUd.,  314. 

i2  7&id.,  314-315. 

13  IMd.,  316.  Compare  the  stand  taken  by  Representative  Shackleford 
of  Missouri,  March  7,  1916,  on  the  McLemore  resolutions  when  he  said  he 
favored  a  resolution  warning  citizens  of  the  United  States  against  traveling 
on  ships  of  the  belligerent  powers,  but  if  agitation  for  one  had  disturbed 
the  President's  diplomatic  negotiations,  he  was  ready  to  vote  against  it. 
In  this  connection  the  report  of  the  House  Committee  on  Foreign  Affairs 
on  these  same  resolutions  is  worth  noting.  In  recommending  that  the  reso- 
lutions be  laid  on  the  table  (March  3),  the  committee  said  in  part,  ''Under 
the  Constitution  the  practice  and  precedents  in  this  country,  the  conduct 
of  diplomatic  negotiations  has  been  left  to  the  President  and  with  this 
practice  the  committee  does  not  think  it  proper  for  the  House  of  Representa- 
tives to  interfere. ' ' 


6  Constitutional  History  of  the  Louisiana  Purchase 

had  a  right  to  obtain  information  before  granting  money  under 
^,  a  treaty.  This  party,  however,  acknowledged  a  call  for  informa- 
tion to  be  improper  during  a  pending  negotiation.^*  Huger  of 
South  Carolina  did  not  consider  the  present  case  similar  to 
that  arising  out  of  the  British  Treaty.  In  the  latter  instance, 
one  party  in  the  House  claimed  the  right  to  demand  the  infor- 
mation of  the  Executive,  and  he  was  obliged  to  deliver  it ;  while 
the  other  part^^  did  not  acknowledge  the  right  of  the  House  to 
demand,  or  the  obligation  of  the  President  to  obey.  In  the 
present  case  nothing  was  asked  except  what  the  Executive  should 
think  proper  to  furnish.  If  proper  for  Congress  to  know  the 
contents  of  the  Convention  he  thought  they  ought  to  have  the 
documents;  if  not  proper,  the  reason  should  be  given.^^  Smilie 
of  Pennsylvania  claimed  that  in  the  debate  on  the  British  Treaty 
the  resolution  proposed  had  not  been  peremptory  but  had  been 
qualified  by  an  exception  of  such  papers  as  the  President  might 
consider  it  improper  to  furnish.  He  confirmed  his  remark  by 
quoting  from  the  House  Journals.^^ 

Griswold  said  the  ground  of  opposition  in  1796,  under  the 
British  Treaty,  had  been  that  the  resolution  had  claimed  the 
right  of  the  House  to  decide  upon  a  treaty,  and  to  establish  this 
point  papers  had  been  called  for.  On  the  decision  of  the  ques- 
tion of  granting  or  refusing  the  application,  had  depended  the 
establishment  of  the  right  of  the  House  to  participate  in  the 
treaty-making  power.  Those  who  had  voted  against  the  call  had 
denied  this. right.  In  the  case  of  the  Louisiana  convention,  con- 
tinued Griswold,  there  was  no  difference  of  opinion  as  to  the 
power  of  the  House.  The  President  having  expressly  stated  in 
his  message  that  the  cession  would  have  weight  in  the  delibera- 


1^  Annals  of  Congress,  7  Cong.,  2  Sess.  (1802-1803),  316. 

15  JM^.,  318. 

16  IMd. 


Events  Leading  to  the  Purchase  7 

tions  of  the  Legislature,  information  was  necessary.^^  Despite 
Griswold's  objection,  Randolph's  motion  to  refer  the  motion 
to  a  Committee  of  the  Whole  on  the  state  of  the  Union  carried 
by  a  vote  of  forty-nine  to  thirty-nine.^^ 

In  the  debate  on  Randolph's  motion,  various  views  were 
expressed  regarding  the  relation  of  the  branches  of  the  Govern- 
ment to  one  another.  Dana  of  Connecticut  held  it  to  be  not  only 
proper  but  the  duty  of  the  House  to  request  any  information 
from  the  President  which  would  assist  in  the  proceedings.  The 
President,  he  said,  was  designated  by  the  Constitution  as  the 
proper  person  from  whom  information  on  such  subjects  as  the 
one  under  discussion  was  to  be  obtained.^® 

Randolph's  answer  to  Dana  opened  the  way  for  a  broader 
interpretation  of  executive  powers: 

But,  sir,  it  seems  that  this  unfortunate  resolution  betrays  so  entire  an 
ignorance  of  the  distribution  of  the  powers  of  our  Government  as  to  clothe 
the  Executive  with  an  authority  not  only  not  devolved  upon  it  by  the  Con- 
stitution, but  which  is  the  peculiar  province  of  this  and  the  other  branch 


'^T  IMd.,  319.  For  Washington's  refusal  to  comply  with  the  request  of 
the  House,  see  his  message  of  March  30,  1796,  in  Eichardson,  Messages  and 
Papers  of  the  Presidents,  I,  194-196. 

Because  he  as  President  was  called  upon  to  take  a  stand  on  the  question 
of  the  participation  of  the  House  in  treaty-making,  Jefferson's  statements 
on  the  treaty-making  power  at  the  time  of  the  Jay  Treaty  are  of  signifi- 
cance. In  a  letter  to  William  B.  Giles,  December  31,  1795,  he  said  it  was 
''the  true  theory  of  our  constitution,  that  when  a  treaty  is  made,  involving 
matters  confided  by  the  constitution  to  the  three  branches  of  the  legislature 
conjointly,  the  representatives  are  as  free  as  the  President  &  Senate  were 
to  consider  whether  the  national  interest  requires  or  forbids  their  giving 
the  forms  &  force  of  law  to  the  articles  over  which  they  have  a  power. ' ' 
Jefferson,  Writings  (Ford,  ed.),  VII,  41. 

On  March  21,  1796,  Jefferson  wrote  to  Monroe  that  although  the  Presi- 
dent and  Senate  had  the  general  power  of  making  treaties,  yet  all  articles 
contained  in  a  treaty  necessitating  an  act  of  legislation  must  be  submitted 
to  the  House,  which  as  one  branch  of  the  Legislature  '  *  are  perfectly  free  to 
pass  the  act  or  refuse  it,  governing  themselves  by  their  own  judgment 
whether  it  is  for  the  good  of  their  constituents  to  let  the  treaty  go  into 
effect  or  not.  On  the  precedent  now  to  be  set  will  depend  the  future 
construction  of  our  constitution,  and  whether  the  powers  of  legislation  shall 
be  transferred  from  the  P.  Senate  &  H.  of  E.  to  P.  Senate  &  Piarningo  or 
any  Indian,  Algerine  or  any  other  chief."     Ibid.,  VII,  67-68. 

i»  Annals  of  Congress,  7  Cong.,  2  Sess.   (1802-1803),  321. 

19  7&W?..  353. 


8  C onstiiutimuil  History  of  the  Louisiana  Purchase 

of  the  Legislature.  The  gentleman  [Mr.  Dana]  denies  the  power  of  the 
Executive  to  redress  injuries  received  from  foreign  nations.  . .  .  Have  I, 
indeed,  so  far  mistaken,  and,  contrary  to  my  own  avowed  principles,  am 
so  disposed  to  augment  the  Executive  powers  at  the  expense  of  the  other 
departments  of  the  Government?  Suppose,  on  the  representations  of  the 
Court  of  Spain,  that  Court,  which  is  more  than  probable,  should  restore  the 
rights  of  navigation  and  deposit,  disavow  the  conduct  of  their  officers  in 
violating  those  rights,  and,  moreover,  punish  them  for  it?  Would  any 
person  deny  that,  through  the  agency  of  the  Executive,  constitutionally 
exercised,  the  injury  was  redressed?  . . . 

By  the  Constitution  of  the  United  States,  the  Executive  is  the  repre- 
sentative of  the  United  States  to  foreign  nations.  It  is  furnished  with 
organs  by  which  to  receive  their  propositions,  and  to  communicate  their 
own.  The  Constitution,  therefore,  presumes  that  to  this  department  may 
be  entirely  confided  our  negotiations  with  foreign  States.  .  . .  Until  it  could 
be  shown  that  some  specific  act  of  the  Executive  had  rendered  that  depart- 
ment unworthy  of  our  confidence,  we  might  consistently  express  it:  and, 
even  if  proof  of  such  misconduct  could  be  established,  it  would  not  alter 
the  tenor  of  the  Constitution,  however  the  individual  might  be  affected 
by  it.  For  your  Constitution,  sir,  is  not  of  that  precarious  nature  which 
depends  on  the  fluctuating  characters  of  particular  men.20 

John  Randolph 's  phrase,  ' '  fluctuating  character, ' '  might  well 
be  applied  to  himself  for  it  is  doubtful  if  a  more  unique  man 
ever  sat  in  Congress.  A  sturdy  defender  of  the  states'  rights 
theory,  and  one  strongly  opposed  to  the  centralizing  tendencies 
of  the  National  Government,  he  was  at  the  time  of  this  debate 
one  of  the  leaders  of  his  party  in  supporting  the  acts  of  the 
Jefferson  administration,  which  was  now  about  to  do  so  much 
toward  strengthening  the  federal  power.  The  open  break  with 
his  party  had  not  yet  come  and  Randolph  was  a  man  whose 
influence  was  steadily  growing.  To  be  sure,  he  did  not  com- 
pletely close  his  eyes  to  the  dangers  which  he  considered  threat- 
ening to  the  rights  of  the  states  and  his  voice  was  often  heard 
in  protest  against  certain  of  the  measures  introduced  by  the 
administration. 

The  exigencies  of  the  situation  seemed  to  Jefferson  to  demand 
that  prompt  action  be  taken  to  secure  the  interests  of  the  United 

2oi6id.,  360-361. 


Events  Leading  to  the  Purchase  9 

States.  With  that  object  in  view  he  nominated  Robert  R.  Liv- 
ingston to  be  minister  plenipotentiary  and  James  Monroe  min- 
ister extraordinary  and  plenipotentiary,  to  enter  into  a  treatj^ 
or  convention  with  the  First  Consul  of  France  for  the  securing 
of  the  rights  of  the  Americans  on  the  Mississippi.  To  facilitate 
negotiations  with  Spain,  since  the  possession  of  the  territory 
along  the  Mississippi  was  still  in  her  hands,  Charles  Pinckney 
was  nominated  minister  plenipotentiary  to  that  country,  and 
James  Monroe  was  given  the  same  position  with  regard  to  Spain 
as  in  his  appointment  to  France.^^ 

There  was  considerable  objection  to  the  appointment  of 
Monroe,  due.  Senator  Plumer  says,  to  the  fact  that  Monroe,  when 
recalled  by  Washington,  was  friendly  with  the  men  whom 
Napoleon  Bonaparte  considered  as  Jacobins  and  enemies  to  him. 
Good  policy,  in  Plumer 's  opinion,  would  have  dictated  the  send- 
ing of  a  man  who  would  be  well  received  by  the  government  to 
whom  he  was  sent.  The  appointment  was  confirmed  by  the  close 
vote  of  fifteen  to  twelve. 2- 

News  of  Monroe's  appointment  was  sent  to  Livingston  by 
Secretary  of  State  Madison,  January  18,  1803.  The  object  of  the 
negotiations  was  stated  to  be  the  procurement  of  New  Orleans 
and  the  Floridas;  and  consequentl}^  the  establishment  of  the 
Mississippi  as  the  boundary  line  between  the  United  States  and 
Louisiana.  Toward  this  end  a  sum  of  money  would  be  offered 
the  French  Government;  also,  such  regulations  of  the  commerce 


21  Eichardson,  Messages  and  Papers  of  the  Presidents,  I,  350-351, 
Message  to  the  Senate,  January  11,  1803.  On  this  matter  Manasseh  Cutler 
wrote  to  Dr.  Joseph  Torrey,  January  15,  1803:  ''The  object  is  to  make  a 
purchase  of  the  Province  [New  Orleans].  This  is  certainly  the  best  thing 
that  can  be  done.  It  wUl  save  us  from  the  expenses,  hazard,  and  evils  of  a 
war. .  . .  The  wjiole  business  is  now  left  with  the  Executive,  and  Monroe, 
late  Governor  of  Virginia,  is  the  minister,  it  is  said,  who  is  sent  on  this 
business."  Cutler  and  Cutler,  Life,  Journals  and  Correspondence  of  Eev. 
Manasseh  Cutler,  II,  122. 

22  Plumer  to  Livermore,  January  13,  1803 ;  Plumer  to  Daniel  Plumer, 
January  15,  1803,  in  Plumer  MSS.  See  also  Plumer  to  John  Taylor  Gilman, 
January  18,  1803,  in  Plumer,  Life  of  William  Plumer,  249. 


10         Constitutional  History  of  the  Louisiana  Purchase 

of  the  Mississippi  and  of  the  other  rivers  entering  the  Gulf  of 
Mexico  as  ought  to  prove  satisfactory  to  France. ^^ 

In  order  to  assist  the  President  in  his  negotiations  for  a  place 
of  deposit  on  the  Mississippi,  the  House  of  Representatives  took 
under  consideration,  January  12,  1803,  the  report  of  a  committee 
on  the  following  resolution; 

Resolved,  that  a  sum  of  two  millions  of  dollars,  in  addition  to  the  pro- 
vision heretofore  made,  be  appropriated  to  defray  any  expenses  which  may 
be  incurred  in  relation  to  the  intercourse  between  the  United  States  and 
foreign  nations,  to  be  paid  out  of  any  money  that  may  be  in  the  Treasury, 
not  otherwise  appropriated,  and  be  applied  under  the  direction  of  the  Presi- 
dent of  the  United  States,  who,  if  necessary,  is  hereby  authorized  to  borrow 
the  whole  or  any  part  thereof;  an  account  whereof,  as  soon  as  may  be  shall 
be  laid  before  Congress. 

The  committee  stated  the  object  of  the  resolution  to  be  to 
enable  the  Executive  to  commence,  with  more  effect,  a  negotia- 
tion with  the  French  and  Spanish  governments  relative  to  the 
purchase  from  them  of  the  island  of  New  Orleans  and  the  two 
Floridas.  The  need  for  a  place  of  deposit  was  pointed  out,  as 
also  for  an  outlet  from  Mississippi  through  West  Florida.  The 
acquisition  of  East  Florida  was  considered  advisable,  if  not  a 
necessity.  Increase  of  territory  was  not  the  object  sought; 
although  **if  we  look  forward  to  the  free  use  of  the  Mississippi, 
the  Mobile,  the  Apalachicola,  and  the  other  rivers  of  the  West, 
by  ourselves  and  our  posterity.  New  Orleans  and  the  Floridas 
must  become  a  part  of  the  United  States,  either  by  purchase  or 
by  conquest."  The  committee  reported  favorably  on  the  reso- 
lution.^* 

On  February  15,  1803,  a  confidential  message  from  the 
House  was  received  by  the  Senate,  transmitting  a  bill  which  had 


2i  Annals  of  Congress,  7  Cong.,  2  Sess.   (1802-1803),  Appendix,  1063- 
1064. 

24 /bid.,  370-374. 


Events  Leading  to  the  Purchase  11 

passed  the  House,  entitled  ' '  An  act  making  further  provision  for 
the  expenses  attending  the  intercourse  between  the  United  States 
and  foreign  nations,"  in  which  the  concurrence  of  the  Senate 
was  requested.^^ 

There  were  those  in  the  Senate  who  believed  in  forcible 
occupation  of  the  desired  territory.  Ross  of  Pennsylvania 
claimed  the  indisputable  right  to  free  navigation  of  the 
Mississippi  and  to  a  place  of  deposit,  and  introduced  resolutions 
authorizing  the  President  to  take  immediate  possession  of  such 
place  or  places  as  he  saw  fit  for  this  purpose.  The  President 
was  also  to  be  authorized  to  call  into  service  the  militia  of  the 
neighboring  states  and  the  Mississippi  Territory,  not  exceeding 
fifty  thousand,  and  to  employ  them  together  with  the  military 
and  naval  forces  of  the  Union  for  effecting  the  desired  objects. 
The  sum  of  five  millions  of  dollars  was  to  be  appropriated  to 
the  carrying  into  effect  of  these  resolutions.^^ 

Although  Ross'  resolutions  were  struck  out,  the  constitutional 
questions  involved  were  not  so  quickly  passed  by.  The  danger 
of  armed  action  on  the  part  of  the  Executive  was  pointed  out  by 
Clinton  of  New  York,  who  said  that  the  measure  would  tend 
toward  upsetting  the  balance  of  the  Government  by  giving  exten- 
sive powers  to  the  Executive:  it  was  an  inevitable  consequence 
of  war  in  free  countries  that  the  power  which  wielded  the  force 
always  rose  above  the  power  that  expressed  the  will  of  the 
people.  The  state  governments  would  be  greatly  weakened. 
''Those  stately  pillars  which  support  the  magnificent  dome  of 
our  National  Government  will  totter  under  the  increased  weight 
of  the  superincumbent  pressure.  "^^ 


25  Ibid.,  90. 

26  Ibid.,  95-96.  By  friends  of  the  administration  Eoss  was  suspected 
of  representing  a  group  of  men  ready  to  plunge  the  country  into  war  and 
ruin  to  gratify  party  ends.  For  this  view,  see  the  National  Intelligencer, 
February  16,  1803. 

21  Annals  of  Congress,  7  Cong.,  2  Sess,  (1802-1803),  132. 


12         Constitutional  History  of  the  Louisiana  Purchase 

Grouvemeur  Morris  of  New  York  expressed  the  opinion  that 
Uie  western  regions  were  peculiarly  the  heritage  of  the  American 
people  and  must  be  held  open  to  the  westward  migration  of  the 
overflowing  population  of  the  eastern  states.  For  this  reason 
New  Orleans  and  the  Floridas  must  not  be  separated  from  the 
United  States.-^  Other  senators  held  more  strictly  than  Morris 
to  the  constitutionality  of  the  measure  proposed.  Stevens  T. 
Mason  of  Virginia  demanded : 

Does  the  gentleman  not  know  that  the  militia  cannot  be  sent  on  the 
service  of  invasion  into  the  territory  of  their  neighbors!  Does  he  not  know 
that  we  are  destitute  of  any  authority  to  send  themf  The  Constitution 
gives  Congress  the  power  over  the  militia  to  'suppress  insurrections,  and 

repel  invasions, '  but  nothing  further Grentlemen  tell  us  that  they  are 

willing  to  entrust  to  the  Executive  the  power  of  gong  to  war,  or  not,  at  his 

discretion Who  gave  them  the  authority  to  vest  in  any  other  authority 

than  in  Congress  the  right  of  declaring  war  ?  . . .  He  could  not,  as  one,  with- 
out treason  to  the  Constitution,  consent  ever  to  relinquish  the  right  of 
declaring  war  to  any  man,  or  men,  besides  Congress.29 

Mason  looked  into  the  future  when  he  declared  that  Gk)uv- 
emeur  Morris's  statement  that  immediate  possession  of  the 
Floridas  must  be  secured,  showed  that  the  deposit  at  New 
Orieans  was  not  the  real  object  which  Morris  had  in  mind. 
** Presently  we  shall  be  told  we  must  have  Louisiana;  then  the 
gold  mines  of  Mexico — these  would  be  good  things  if  come  by 
honestly — ^then  Potosi — then  St.  Domingo,  with  their  sugar, 
coffee,  and  all  the  rest."^° 

The  House  bill  ''making  further  provision  for  the  expenses 
attending  the  intercourse  between  the  United  States  and  foreign 
nations"  passed  the  Senate  by  the  close  vote  of  fourteen  to 


2iiAn.n4iLs  of  ^Congress,  7  Cong.,  2  Sess.  (1802-1803),  195. 

29  Ibid.,  216. 

3oj&td.,  218-219.  The  movement  of  Americans  into  Spanish  territory 
is  confirmed  a  little  later  by  John  Smith  in  his  letter  to  Jefferson,  August 
30,  1803,  from  West  Florida.  A  rumor  having  reached  him  that  Louisiana 
was  to  be  exchanged  for  Florida,  Smith  advised  against  it.  Florida  could 
soon  be  obtained  at  a  low  price.  It  was  rapidly  being  settled  by  Ameri- 
cans. Jefferson  Papers,  "Letters  received  at  Washington,  2d  Series," 
LXXYI  (46). 


Events  Leading  to  the  Purchase  13 

twelve.^^  When  Senator  Plumer,  as  chairman  of  the  Committee 
on  Enrolled  Bills,  presented  the  act  to  Jefferson,  on  February  26, 
the  President  said  that  a-  great  point  had  now  been  gained,  a 
new  precedent  established  in  our  Government,  namely,  the  pass- 
age of  an  important  act  of  Congress  in  secret  sesslmi.^^ 

It  does  not  fall  within  the  province  of  this  discussion  to  follow 
in  detail  the  story  of  the  purchase  of  Louisiana.^^  It  is  the 
history  of  the  constitutional  problems  arising  out  of  that  acqui- 
sition which  will  be  taken  up.  Livingston  and  Monroe  wrote 
from  Paris,  May  13,  1803,  announcing  the  purchase.^*  Madison 
in  reph'  stated  that  the  President  approved  of  the  action  taken 
by  the  negotiators,  despite  the  lack  of  instructions,  such  action 
having  been  justified  by  the  reasons  given  by  the  two  ministers.^^ 

The  reception  of  the  treaty  in  Congress  is  described  by 
Jefferson  in  his  letter  to  Livingston,  November  4,  1803,  in  which 
he  wrote  that  the  treaty  was  generally  approved  except  by  the 
Federalists,  whose  numbers  were  so  greatly  reduced  that  they 
counted  for  little.^^  Writing  to  Captain  Meriwether  Lewis, 
November  16,  Jefferson  said,  ''The  votes  of  both  Houses  on 
ratifying  and  carrying  the  treaties  into  execution,  have  been 
precisely  partj^  votes,  except  that  General  Dayton  has  separated 
from  his  friends  on  these  questions,  and  voted  for  the  treaties. '  '^^ 


^■^  Annals  of  Congress,  7  Cong.,  2  Sess.  (1802-1803),  104. 

32  Plumer,  Life  of  William  Plumer,  255-256. 

33  See  Henry  Adams,  History  of  the  United  States,  I,  423-446,  II,  25-50. 
s^Amials  of  Congress,  7  Cong.,  2  Sess.    (1802-1803),  Appendix,  1145- 

1150. 

35lUd.,  1166,  Letter  of  July  29,  1803. 

36  Jefferson,  Writings  (Washington,  ed.),  IV,  510. 

37  Jejfferson,  Writings  (Memorial  ed.),  X,  434.  A  similar  statement 
appears  in  Plumer 's  ''Memorandum,"  under  date  of  October  20,  1803. 
Plumer  defended  his  own  vote  against  ratification  of  the  treaty  on  the 
ground  that  he  considered  it  as  a  direct  violation  of  the  Constitution.  The 
admission  of  such  a  vast  territory  into  the  Union  would  tend  to  divide  the 
United  States  into  separate  empires.  It  would  destroy  the  influence  of  the 
"Eastern  States"  in  Congress.  Plumer  to  Daniel  Plumer,  November  22, 
1803,  in  Plumer  Mss.  This  was  the  stock  New  England  argument  against 
the  purchase. 


CHAPTEE  H 

THE    CONSTITUTIONAL    RIGHT    TO    ACQUIRE 

TERRITORY:  CONTEMPORARY  OPINION 

One  of  the  first  constitutional  questions  to  be  discussed  as  a 
result  of  the  purchase  of  Louisiana  was:  did  a  constitutional 
right  to  acquire  territory  exist? 

No  specific  grant  of  such  power  was  to  be  found  in  the  Con- 
stitution.   Article  four,  section  three,  declares: 

New  States  may  be  admitted  by  the  Congress  into  this  Union;  but  no 
new  State  shall  be  formed  or  erected  within  the  jurisdiction  of  any  other 
State;  nor  any  State  be  formed  by  the  Junction  of  two  or  more  States,  or 
Parts  of  States,  without  the  consent  of  the  Legislatures  of  the  States  con- 
cerned as  well  as  of  Congress. 

The  Congress  shall  have  power  to  dispose  of  and  make  all  needful  Eules 
and  Eegulations  respecting  the  Territory  or  other  Property  belonging  to  the 
United  States;  and  nothing  in  this  Constitution  shall  be  so  construed  as  to 
Prejudice  any  claims  of  the  United  States,  or  of  any  particular  State. 

Was  the  authorization  of  power  to  acquire  territory  to  be  found 
in  these  provisions?^    This  was  a  disputed  question. 

Article  eleven  of  the  Articles  of  Confederation  contained  the 
provision:  '^ Canada,  acceding  to  this  Confederation,  and  joining 
in  the  measures  of  the  United  States,  shall  be  admitted  into,  and 
entitled  to,  all  the  advantages  of  this  union ;  but  no  other  colony 
shall  be  admitted  into  the  same  unless  such  admission  be  agreed 
to  by  nine  states.  "^ 

In  Edmund  Randolph's  ''Propositions"  in  the  Federal  Con- 
vention, commonly  known  as  the  Virginia  Plan,  we  find  under 


1  No  such  interpretation  was  made  by  Madison  in  his  explanation  of 
these  sections  of  the  Constitution  in  the  Federalist.  See  No.  42  (Ford,  ed. 
1898);   also  Ford's  footnote,  284-285. 

2  Elliot,  Debates  on  the  Federal  Constitution,  I,  84. 


Constitutional  Bight  to  Acquire  Territory  15 

number  ten:  ^^ Resolved,  That  provision  ought  to  be  made  for 
the  admission  of  states,  lawfully  arising  within  the  limits  of  the 
United  States,  whether  from  a  voluntary  junction  of  government 
or  territory,  or  otherwise,  with  the  consent  of  a  number  of  voices 
in  the  natimial  legislature  less  than  the  whole. "^  This  proposal 
would  seem  to  apply  only  to  territory  then  owned  by  the  United 
States. 

Patterson 's  proposals,  or  the  New  Jersey  Plan,  merely  declared 
''that  provision  ought  to  be  made  for  the  admission  of  new 
states  into  the  Union."*  The  restrictions  of  the  Randolph  plan 
were  not  included.  Hamilton's  plan  contained  a  provision 
similar  to  that  of  the  Patterson  plan.^  The  Charles  Pinckney 
draft  provided  for  the  admission  of  new  states  into  the  Union 
by  the  Legislature  on  the  same  terms  with  the  original  states, 
if  two-thirds  of  the  members  present  in  both  Houses  should  agree 
thereto.^ 

A  definite  restriction  appears  in  the  report  of  the  Committee 
of  Detail  where  it  is  stipulated  that  new  states  soliciting  admis- 
sion into  the  Union  "must  be  within  the  present  limits  of  the 
United  States."^  In  a  later  report  the  important  word  present 
was  omitted.^ 

The  draft  of  a  Constitution  as  reported  by  the  Committee 
of  Five,  August  6,  1787,  contained  the  following  article: 

Article  17.  New  states,  lawfully  constituted  or  established  within  the 
limits  of  the  United  States,  may  be  admitted  by  the  legislature  into  this 
government;  but  to  such  admission  the  consent  of  two-thirds  of  the  mem- 
Iters  present  in  each  house  shall  he  necessary.     If  a  new  state  shall  arise 

3  Elliot,  Debates,  I,  144-145;  Farrand,  Eecords  of  the  Federal  Conven- 
tion, I,  22.     Italics  mine. 

4  Elliot,  Debates,  I,  177;  Farrand,  Eecords  of  the  Federal  Convention, 
I,  245. 

5  Farrand,  Eecords  of  the  Federal  Convention,  III,  629-630. 

6  Elliot,  Debates,  I,  149 ;  Farrand,  Eecords  of  the  Federal  Convention, 
III,  601,  Appendix  D. 

7  Farrand,  Eecords  of  the  Federal  Convention,  II,   147.     Italics  mine. 

8  Ibid.,  II,  173. 


16         Constitutiomal  History  of  the  Louisiana  Purchase 

within  the  limits  of  any  of  the  present  states,  the  consent  of  the  legislature 
of  such  states  shall  be  also  necessary  to  the  admission.     If  the  admission 
*  be  consented  to,  the  new  states  shall  be  admitted  on  the  same  terms  with 
the  original  states.^ 

No  agreement  was  reached  as  to  the  meaning  of  these  pro- 
posals, and  thus  the  way  was  opened  for  differences  of  opinion 
in  later  interpretation  of  the  disputed  points.  According  to 
Gouverneur  Morris  this  clause  of  the  Constitution  had  been  pur- 
posely left  vague.^^ 

Other  provisions  of  the  Constitution  afforded  justification 
to  many  for  the  acquisition  of  territory.  These  were  the  power 
given  to  Congress  to  declare  war,^^  and  the  treaty-making  power 
of  the  President  and  Senate.^^  tj^^  consequent  power  of  the 
Government  to  acquire  territory,  either  by  conquest  or  by 
treaty,  was  advanced  at  the  time  of  the  purchase  of  Louisiana. 
This  view  received  the  legal  sanction  of  the  Supreme  Court  a 
little  later.13 

The  acquisition  of  territory  was  defended  by  others  on  the 
ground  that  the  United  States  as  a  sovereign  state  could  adopt 
all  the  methods  of  extending  its  possessions  recognized  by  inter- 
national usage.  With  the  expansion  of  the  United  States  this 
last  interpretation  has  come  more  and  more  to  be  generally 
accepted. 

To  what  extent  these  various  interpretations  were  supported 
and  denied  in  relation  to  Louisiana  it  will  now  be  our  purpose 
to  investigate. 


9  Elliot,  Delates,  I,  229-230.    Italics  mine. 

10  Sparks,  Life  of  Gouverneur  Morris,  III,  192 ;  Farrand,  Eecords  of  the 
Federal  Convention,  III,  404.     See  below. 

It  is  interesting  to  note  that  when  a  portion  of  the  citizens  of  the 
United  States  at  a  later  date  had  an  opportunity  of  drawing  up  a  new 
constitution,  a  specific  provision  for  the  acquisition  of  new  territory  was 
made.  See  article  4,  section  3,  clause  3,  of  the  constitution  of  the  Con- 
federate States. 

11  Article  I,  section  8,  clause  11. 

12  Article  II,  section  2,  clause  2. 

13  See  below. 


Constitutional  Eight  to  Acquire  Territory  17 

The  news  of  the  purchase  of  the  whole  of  Louisiana  caused 
Jefferson  some  surprise  but  it  cannot  be  said  that  he  had  never 
contemplated  the  extension  of  American  control  westward.  As 
early  as  1786  the  report  of  discontent  in  Kentucky  and  the 
threat  that  this  region  might  separate  itself  from  the  Confederacy, 
caused  him  to  remark  that  this  would  be  a  ' '  calametous  event. ' ' 
He  believed  an  increase  of  votes  in  Congress  would  be  a  good 
thing  in  helping  to  keep  down  the  little  divisions  existing  there.^* 
The  Confederacy  ''must  be  viewed  as  the  nest  from  which  all 
America,  North  &  South  is  to  be  peopled."  The  territory  while 
in  possession  of  Spain,  he  continued,  was  in  good  hands  and  care 
must  be  taken  not  to  press  too  soon  on  the  Spaniards.  The  only 
danger  lay  in  the  fact  that  the  Spaniards  might  be  too ,  feeble 
to  hold  the  territory  until  the  Americans  were  ready  to  take  it 
piece  by  piece.  At  the  time  of  writing,  the  navigation  of  the 
Mississippi  was  regarded  as  absolutely  necessary.  That  was  all 
the  Americans  were  as  yet  ready  to  receive.^^ 

Again,  in  1791,  Jefferson,  in  discussing  the  invitation  of 
Governor  Quesada  to  settlers  to  come  into  Florida,  remarked 
that  he  wished  a  hundred  thousand  Americans  would  go.  "It 
will  be  the  means  of  delivering  to  us  peaceably,  what  may  other- 
wise cost  us  a  war.  In  the  meantime  we  may  complain  of  this 
seduction  of  our  inhabitants  just  enough  to  make  them  [the 
Spaniards]  believe  we  think  it  very  wise  policy  for  them,  and 
confirm  them  in  it.  "^^ 

Constitutional  difficulties  which  might  arise  from  such  acqui- 
sition of  territory  do  not  seem  to  have  entered  Jefferson's  head, 
but  when  the  decision  was  made  in  January,  1803,  to  send  Mon- 


14  On  August  17,  1821,  in  referring  to  the  admission  of  Missouri  into 
the  Union  Jefferson  wrote  to  Henry  Dearborn:  ''I  still  believe  that  the 
Westward  extension  of  our  confederacy  will  ensure  its  duration,  by  over- 
ruling local  factions,  which  might  shake  a  smaller  association. ' '  Jefferson, 
Writings  (Federal  ed.),  XII,  206. 

15  Jefferson,  Writings  (Ford,  ed.),  II,  188-189.     Italics  mine. 
i6  7&id.,  V,  316. 


18         Constitutional  History  of  the  Louisiana  Purchase 

roe  to  negotiate  for  the  purchase  of  New  Orleans  and  Florida, 
^  the  question  of  the  constitutionality  of  the  purchase  was  raised. 
Attorney  General  Levi  Lincoln  foresaw  the  storm  of  opposition 
which  might  be  expected,  and  worked  out  a  novel  and  unique 
scheme  to  avert  the  attack.  His  plan  is  disclosed  in  a  letter  to 
Jefferson,  January  10,  1803.  The  importance  of  New  Orleans 
and  the  Floridas,  with  the  unimpeded  navigation  of  the  Missis- 
sippi to  the  United  States,  in  his  opinion  justified  almost  any 
risk  for  their  attainment.  The  mode  of  attainment  while  sub- 
stantially securing  the  object  sought  for,  would,  perhaps,  free  it 
from  ''formidable  difficulties." 

The  idea  is  [he  continued]  that  for  the  common  advantage  of  having 
great,  fixed,  and  natural  boundaries  between  the  territory  of  France  and 
the  United  States,  and  to  secure  to  the  latter,  the  full  and  unimpeded 
navigation  of,  maritime  &  commercial  rights  important,  and  naturally 
appurtenant  to  a  country  bordering  on  navigable  rivers,  in  the  neighborhood 
of  a  sea  coast,  and  from  the  interior  of  w^hich  country,  navigable  rivers 
empty  themselves  into  a  neighboring  sea,  France  agrees  to  extend  the 
boundaries  of  the  Mississippi  Territory,  and  of  the  State  of  Georgia  [to 
the  Mississippi  Eiver  and  the  Gulf,  including  all  the  desired  territory]. 
By  this  indirect  mode,  if  it  is  feasible,  would  not  the  General  Govt  avoid 
some  constitutional,  and  some  political  embarrassments,  which  a  direct 
acquisition  of  a  foreign  territory  by  the  Govt  of  the  United  States  might 
occasion  ? 

For  instance,  would  not  the  territory  added  to  the  respective  states  by 
the  enlargement  of  their  boundaries,  as  an  incident  immediately  by  the  act 
of  accretion,  assimilate  to  the  principal,  and  merging  in  them,  be  subject 
to  their  authority,  and  of  course  to  the  authority  of  the  United  States? 

If  the  proposed  acquired  property,  or  territory,  can  be  thus  melted  down, 
and  consolidated,  instead  of  being  federated  with  the  States  already  united, 
their  laws  would  extend  to  it,  in  common  with  other  parts  of  the  enlarged 
States,  without  risking  the  doubtful  attempt,  so  to  amend  the  Constitution, 
as  to  embrace  the  object;  or  hazarding  the  ratification  of  the  treaty,  from 
an  opposition  to  such  an  amendment — or  being  exposed  to  the  consequences 
of  such  an  amendment  being  refused — The  Inhabitants  thus  added,  and 
who  would  have  been  citizens  of  the  enlarged  state,  had  the  acquired 
territory  originally  been  a  part  of  such  stat-e,  would  of  course  be  considered 
as    citizens;    and    others    get    naturalized    under    the    existing    laws.      This 


Constitutional  Bight  to  Acquire  Territory  19 

mode  of  naturalization  would  keep  ono  door  closed  against  future  contro- 
versy, and  dangerous  divisions,  in  our  country,  and  on  a  principle  somewhat 
similar  to  the  one  sanctioned  by  Jay's  treaty. 

If  the  opinion  is  correct,  that  the  Genl  Govt  when  formed,  was  predi- 
cated on  the  then  existing  United  States,  and  such  as  could  grow  out  of 
them,  &  out  of  them  only,  and  that  its  authority,  is,  constitutionally,  lim- 
ited to  the  people  composing  the  several  political  State  Societies  in  that 
union,  &  such  as  might  be  formed  out  of  them;  would  not  a  direct  inde- 
pendent purchase,  be  extending  the  executive  power  further,  and  be  more 
alarming  and  [illegible]  by  the  opposition  and  the  Eastern  States,  than 
the  proposed  indirect  mode?  Is  there  not  danger,  that.  The  Eastern  States, 
including  even  Ehode  Island  &  Vermont,  if  not  New  York,  &  other  states 
further  South,  would  object  to  the  ratification  of  a  treaty  directly  intro- 
ducing a  state  of  things,  involving  the  idea  of  adding  to  the  weight  of 
the  Southern  States  in  one  branch  of  the  Govt  of  which  there  is  already  too 
great  a  jealousy  &  dread,  while  they  would  acquiesce  in  that  increase  of 
the  other  branch  consequent  on  the  enlargement  of  the  boundaries  of  a 
State? 

It  is  foreseen  that  the  opposition  and  the  eastern  States  will  take  a 
distinction,  between  securing  the  free  navigation  of  the  Mississippi,  with 
a  convenient  deposit  for  merchandise,  and  a  measure  and  the  principles 
of  a  measure,  which  may  add  one  or  more  States  to  the  Union,  and  thereby 
change  that  relative  influence  between  different  parts  of  the  United  States, 
on  which  the  general  Govt,  was  predicated.  No  plan  of  necessity,  of  com- 
mercial utility,  or  national  security,  will  have  weight  with  a  violent  party, 
or  be  any  security  against  their  hostile  efforts  &  opposition  clamor.  . . . 

The  principles,  and  the  precedent,  of  an  independent  purchase  of  terri- 
tory, it  will  be  said,  may  be  extended  to  the  East  or  West  Indies,  and  that 
some  future  executive,  will  extend  them,  to  the  purchase  of  Louisiana,  or 
still  further  south,  &  become  the  Executive  of  the  United  States  of  North 
&  South  America 

The  mode  of  acquiring  new  territory  by  extending  the  boundaries  of 
existing  States,  will  foreclose  these  objections,  as  well  as  supersede  the 
necessity  of  amend  [ing]  the  Constitution,  and  perhaps  prevent  the  rejection 
of  the  acquisition  treaty,  if  such  a  one  should  be  made. 

The  consequences  deducible  from  the  principles  &  the  precedent,  in  the 
present  case,  if  predicated  on  the  advantages  &  necessity  of  having  great 
natural  boundaries  for  national  ones,  and  the  river  navigation  naturally 
belonging  to  the  country;  would  necessarily  be  limited  by  the  object,  and 
if  extended,  to  the  utmost  could  never  be  injuriously  applied  in  future.  The 
only  case,  in  which  the  principle  could  possibly  be  applied  hereafter,  would 
be  in  extending  the  boundaries  of  some  of  the  northern  States  to  the  river 
St.  Lawrence. 


20  Constitutional  History  of  the  Louisiana  Purchase 

This  mode  of  acquiring  property  by  the  U.  S.  in  adding  to  the  territory 
of  particular  States,  would  require  their  consent.  In  the  proposed  instance 
they  would  not  object,  Georgia  ought  to  give  the  money  we  owe  her,  on 
account  of  her  late  cession  for  this  acquisition  New  Orleans  &  W  Florida 
being  of  the  territory  of  Mississippi,  may  in  future  be  made  a  State,  if  it 
shall  be  found  to  be  useful,  without  altering  the  constitution.  From  this 
accession  of  inhabitants  to  the  territorial  Govt,  it  would  soon  arrive  to  its 
second  grade,  and  increase  the  value  &  sale  of  lands  belonging  to  the 
U.  S."i7 

It  is  not  necessary  to  point  out  the  obvious  weakness  in 
Lincoln's  plan.  The  best  possible  reply  is  that  of  Gallatin,  to 
whom  Jefferson  submitted  Lincoln's  letter.  Gallatin  laid  down 
a  clear  statement  of  broad  construction  of  the  Constitution.  He 
could  see  no  difference  ^'between  a  power  to  acquire  territory 
for  the  United  States  and  the  power  to  extend  by  treaty  the 
territory  of  the  United  States."  Annexation  of  new  territory 
to  a  state  was  no  more  acceptable  than  the  plan  to  extend  the 
boundaries.  If  the  Legislature  and  Executive  could  not  acquire 
territory  under  the  Constitution  for  the  use  of  the  Union,  cer- 
tainly, contended  Gallatin,  they  could  not  .acquire  it  for  the  use 
of  one  state.  Was  there  any  constitutional  objection  to  the 
acquisition  of  territory?  Gallatin's  answer  to  the  question  is 
worth  following  in  detail: 

The  3d  Section  of  the  4th  Article  of  the  Constitution  provides:  1st. 
That  new  States  may  be  admitted  by  Congress  into  this  Union.  2d.  That 
Congress  shall  have  power  to  dispose  of  and  make  all  needful  rules  and 
regulations  respecting  the  territory  and  other  property  belonging  to  the 
United  States. 

Mr.  Lincoln,  in  order  to  support  his  objections,  is  compelled  to  suppose, 
1st,  that  the  new  States  therein  alluded  to  must  be  carved  either  out  of 
other  States,  or  out  of  the  territory  belonging  to  the  United  States;  and, 
2d,  that  the  power  given  to  Congress  of  making  regulations  respecting  the 
territory  belonging  to  the  United  States  is  expressly  confined  to  the  terri- 
tory then  belonging  to  the  Union. 

A  general  and  perhaps  sufficient  answer  is  that  the  whole  rests  on  a 
supposition,  there  being  no  words  in  the  section  which  confine  the  authority 


1'^  Jefferson   Papers,    ''Letters    Eeceived    at    Washington,    2d.    Series," 
LII  (25).    See  also  Henry  Adams,  History  of  the  United  States,  II,  78-79. 


Cmistitutional  Right  to  Acquire  Territory  21 

given  to  Congress  to  those  specific  objects;  whilst,  on  the  contrary,  the 
existence  of  the  United  States  as  a  nation  presupposes  the  power  enjoyed 
by  every  nation  of  extending  their  territory  by  treaties,  and  the  general 
power  given  to  the  President  and  Senate  of  making  treaties  designates  the 
organ  through  which  the  acquisition  may  be  made,  whilst  this  section  pro- 
vides the  proper  authority  (viz.  Congress)  for  either  admitting  in  the 
Union  or  governing  as  subjects  the  territory  thus  acquired.  It  may  be 
further  observed  in  relation  to  the  power  of  admitting  new  States  in  the 
Union,  that  this  section  was  substituted  to  the  11th  Article  of  Confedera- 
tion, which  was  in  these  words:  'Canada  acceding,  etc;  shall  be  admitted 
into,  etc.,  but  no  other  colony  shall  be  admitted  into  the  same,  unless  such 
admission  be  agreed  to  by  nine  (9)  States.'  As  the  power  was  there 
explicitly  given  to  nine  (9)  States,  and  as  the  other  powers  given  in  the 
Articles  of  Confederation  to  nine  (9)  States  were  by. the  Constitution  trans- 
ferred to  Congress,  there  is  no  reason  to  believe,  as  the  words  relative  to  the 
power  of  admission  are,  in  the  Constitution,  general,  that  it  was  not  the 
true  intention  of  that  Constitution  to  give  the  powers  generally  and  without 
restriction. 

As  to  the  other  clause,  that  which  gives  the  power  of  governing  the 
territory  of  the  United  States,  the  limited  construction  of  Mr.  Lincoln  is 
still  less  tenable;  for  if  that  power  is  limited  to  the  territory  belonging  to 
the  United  States  at  the  time  when  the  Constitution  was  adopted,  it  would 
have  precluded  the  United  States  from  governing  any  territory  acquired, 
since  the  adoption  of  the  Constitution,  by  cession  of  one  of  the  States, 
which,  hoAvever,  has  been  done  in  the  case  of  the  cessions  of  North  Carolina 
and  Georgia;  and,  as  the  words  '.'other  property"  follow,  and  must  be 
embraced  by  the  same  construction  which  will  apply  to  the  territory,  it 
would  result  from  Mr.  L's  opinion,  that  the  United  States  could  not,  after 
the  Constitution,  either  acquire  or  dispose  of  any  personal  property.  To 
me  it  would  appear: 

1st.  That  the  United  States  as  a  nation  have  an  inherent  right  to  acquire 
territory. 

2d.  That  whenever  that  acquisition  is  by  treaty,  the  same  constituted 
authorities  in  whom  the  treaty -making  power  is  vested  have  a  constitutional 
right  to  sanction  the  acquisition. 

3d.  That  whenever  the  territory  has  been  acquired.  Congress  have  the  power 
either  of  admitting  into  the  Union  as  a  new  State,  or  of  annexing  to  a  State 
with  the  consent  of  that  State,  or  by  making  regulations  for  the  government 
of  such  territory. 

The  only  possible  objection  must  be  derived  from  the  12thi8  Amend- 
ment, which  declares  that  powers  not  delegated  to  the  United  States,  nor 
prohibited  by  it  to  the  States,  are  reserved  to  the  States  or  to  the  people. 

18  Tenth. 


22         Constitutional  History  of  the  Louisiana  Purchase 

As  the  States  are  expressly  prohibited  from  making  treaties,  it  is  evident 
that,  if  the  power  of  acquiring  by  treaty  is  not  considered  within  the  mean- 
ing of  the  Amendment  as  delegated  to  the  United  States,  it  must  be  reserved 
to  the  people.  If  that  be  the  true  construction  of  the  Constitution,  it 
substantially  amounts  to  this;  that  the  United  States  are  precluded  from, 
and  renounce  altogether,  the  enlargement  of  territory,  a  provision  sufficiently 
important  and  singular  to  have  deserved  to  be  expressly  enacted.  Is  it  not 
a  more  natural  construction  to  say  that  the  power  of  acquiring  territory 
is  delegated  to  the  United  States  by  the  several  provisions  which  authorize 
the  several  branches  of  government  to  make  war,  to  make  treaties,  and  to 
govern  the  territory  of  the  Union? 

After  this  clear-cut,  logical  exposition  of  broad  construction 
of  the  Constitution,  which  would  have  done  credit  to  any  Fed- 
eralist, Gallatin  weakened  and  added,  ''I  must,  however,  confess 
that  after  all  I  do  not  feel  myself  perfectly  satisfied ;  the  subject 
must  be  thoroughly  examined;  and  the  above  observations  must 
be  considered  as  hasty  and  incomplete.  "^^ 

Gallatin's  arguments  had  weight  with  Jefferson.  This  is 
shown  in  his  reply  to  Gallatin :  ' ' . . .  You  are  right,  in  my 
opinion,  as  to  Mr.  L's  proposition:  there  is  no  constitutional 
difficulty  as  to  the  acquisition  of  territory,  and  whether,  when 
acquired,  it  may  be  taken  into  the  Union  by  the  Constitution  as 
it  now  stands,  will  become  a  question  of  expediency.  I  think  it 
will  be  safer  not  to  permit  the  enlargement  of  the  Union  but 
by  amendment  of  the  Constitution.  "^^ 

Although  Jefferson  was  influenced  somewhat  by  Gallatin's 
interpretation,  his  constitutional  scruples  as  to  incorporation  of 
new  states  formed  from  territory  acquired  since  the  ratification 
of  the  Constitution  were  not  yet  overcome.  The  arrival  of  the 
treaty  of  cession  July  14,  1803,  and  the  short  period  allowed  for 

19  Gallatin,  Writings  (Adams,  ed.),  I,  111-114.  Adams  dates  this  letter 
January  13,  but  no  date  appears  on  the  original  received  by  Jefferson  other 
than  the  note  in  Jefferson's  handwriting,  ''Departmt  of  Treasy  rece'd  Jan. 
13,  1803."  For  Gallatin's  later  view  regarding  the  need  of  an  amendment 
in  this  matter,  see  beloAV. 

20  Ibid.,  I,  115;  Jefferson,  Writings  (Ford,  ed.),  VIII,  241  (footnote). 
This  statement  has  received  various  interpretations;  see  Insular  Cases,  125- 
126,  152-153,  292-293. 


Constitutional  Right  to  Acquire  Territory  23 

ratification,  limited  to  October  30,  obliged  Jefferson  to  convene 
Congress  earlier  than  usual.^^  The  date  decided  upon  was 
October  17.  Jefferson  felt  it  to  be  important  that  Congress 
should  be  supplied  with  all  the  available  information  respecting 
the  treaty.  Congress  would  be  ''obliged  to  ask  the  people  for 
an  amendment  of  the  Constitution,  authorizing  their  receiving 
the  province  into  the  Union,  and  providing  for  its  government; 
and  the  limitations  of  power  which  shall  be  given  by  that  amend- 
ment, will  be  unalterable  but  by  the  same  authority. . . .  "^^ 

On  July  18,  Jefferson  informed  Benjamin  Austin,  by  letter, 
of  the  arrival  of  the  treaty  and  conventions,  and,  after  giving  a 
brief  statement  of  their  provisions,  he  added:  "They  will  of 
course  require  an  amendment  of  the  Constitution  adapted  to  the 
case  which  will  leave  the  inhabitants  &  territory  for  some  time 
in  a  situation  difficult  to  be  defined,  but  the  acquisition  has 
decided  the  painful  question  whether  we  are  to  be  a  peaceable 
or  a  warring  nation. . . .  "^^ 

The  need  of  a  constitutional  amendment  to  authorize  the 
acquisition  was  again  stated  in  a  letter  which  Jefferson  wrote 
to  John  Dickinson,  August  9,  1803 : 

But  there  is  a  difficulty  in  this  acquisition  which  presents  a  handle  to  the 
malcontents  among  us,  though  they  have  not  yet  discovered  it.  Our  con- 
federation is  certainly  confined  to  the  limits  established  by  the  revolution. 
The  general  government  has  no  powers  but  such  as  the  constitution  has 
given  it;  and  it  has  not  given  it  a  power  of  holding  foreign  territory,  and 
still  less  of  incorporating  it  into  the  Union.  An  amendment  of  the  Consti- 
tution seems  necessary  for  this.  In  the  meantime  we  must  ratify  &  pay  our 
money,  as  we  have  treated,  for  a  thing  beyond  the  constitution,  and  rely 
on  the  nation  to  sanction  an  act  done  for  its  great  good,  without  its 
previous  authority.  With  respect  to  the  disposal  of  the  country,  we  must 
take  the  island  of  New  Orleans  and  west  side  of  the  river  as-  high  up  as 

21  Th.  J[efferson]  to  T[homas]  R[andolph],  July  15,  [18]03,  in  Jeffer- 
son Papers,  Coolidge  Collection,  Massachusetts  Historical  Society  Library. 

22  Jefferson  to  Wm.  Dunbar,  July  17,  1803,  in  Jefferson,  Writings  (Ford, 
ed.),  VIII,  254-255  (footnote). 

23  Jefferson  Papers,  ''Letters  from  Jefferson,  1st  Series,  1802-1803," 
IX  (112). 


24         Constitutional  History  of  the  Lotiisiana  Purchase 

Point  Coupee,  containing  nearly  the  whole  inhabitants,  say  about  50,000, 
and  erect  it  into  a  state,  or  annex  it  to  the  Mississippi  territory;  and  shut 
^  up  all  the  rest  from  settlement  for  a  long  time  to  come,  endeavoring  to 
exchange  some  of  the  country  there  unoccupied  by  Indians  for  the  lands 
held  by  the  Indians  on  this  side  of  the  Mississippi,  who  will  be  glad  to  cede 
us  their  country  here  for  an  equivalent  there:  and  we  may  sell  our  lands 
here  and  pay  the  whole  debt  before  it  comes  due.24 

Although  Jefferson  frequently  spoke  of  closing  the  territory 
across  the  Mississippi  to  settlement,^^  it  was  not  his  idea  that  the 
land  there  should  remain  permanently  in  the  hands  of  the 
Indians.  Land  offices  were  to  be  opened  east  of  the  river  and 
settlers  established  there.  When  the  eastern  side  had  been  filled, 
a  range  of  states  was  to  be  laid  off  on  the  opposite  bank  from 
the  head  to  the  mouth  of  the  river.  This  policy  was  to  be  fol- 
lowed, range  after  range,  advancing  compactly  as  population 
increased.^^ 

Constitutional  difficulties  and  expediency,  the  good  of  his 
country,  were  conflicting  in  Jefferson's  mind.  He  laid  bare 
his  thoughts  in  this  matter  to  Breckinridge: 

This  treaty  must  of  course  be  laid  before  both  Houses,  because  both 
have  important  functions  to  exercise  respecting  it.  They,  I  presume,  will 
see  their  duty  to  their  country  in  ratifying  &  paying  for  it,  so  as  to  secure 
a  good  which  would  otherwise  probably  be  never  again  in  their  power.  But 
I  suppose  they  must  then  appeal  to  the  nation  for  an  additional  article  to 
the  Constitution,  approving  &  confirming  an  act  which  the  nation  had  not 
previously   authorized.      The   Constitution   has   made   no   provision   for    our 

24  Jefferson,  Writings  (Ford,  ed.),  VIII,  262-263.  Jefferson  had  given 
considerable  thought  to  the  control  of  emigration  to  the  ceded  territory. 
Eobert  Smith  assured  him  that  this  could  be  accomplished  by  constitutional 
prohibition  that  Congress  should  not  establish  a  new  state  or  territorial 
government  in  the  acquired  territory  north  of  latitude  thirty- two  degrees, 
and  that  no  grant  or  title  to  any  of  the  territory  should  be  given  to  any 
persons  except  Indians.  Jefferson,  Writings  (Ford.,  ed.),  VIII,  241-242. 
Henry  Adams,  History  of  the  United  States,  II,  83-84.  For  Jefferson's 
policy  with  regard  to  the  removal  of  the  Indians  into  Louisiana,  see  Miss 
Annie  Heloise  Abel,  ''The  History  of  Events  resulting  in  Indian  Consoli- 
dation west  of  the  Mississippi,"  in  American  Historical  Association, 
Annual  Beport,  1906,  I,  241-249. 

25  See  below. 

26  Jefferson  to  Breckinridge,  August  18,  1803,  in  Jefferson,  Writings 
(Ford,  ed.),  VIII,  244  (footnote) ;  (Washington,  ed.),  IV,  500-501. 


Constitutimval  Right  to  Acquire  Territory  25 

holding  foreign  territory,  still  less  for  incorporating  foreign  nations  into 
our  Union.  The  Executive  in  seizing  the  fugitive  occurrence  which  so  much 
advances  the  good  of  their  country,  have  done  an  act  beyond  the  Con- 
stitution. The  Legislature  in  casting  behind  them  metaphysical  subtleties, 
and  risking  themselves  like  faithful  servants,  must  ratify  &  pay  for  it,  and 
throw  themselves  on  their  country  for  doing  for  them  unauthorized,  what  we 
know  they  would  have  done  for  themselves  had  they  been  in  a  position  to 
do  it.  It  is  the  case  of  a  guardian,  investing  the  money  of  his  ward  in 
purchasing  an  adjacent  territory;  and  saying  to  him  when  of  age,  I  did 
this  for  your  good;  you  may  disavow  me,  and  I  must  get  out  of  the  scrape 
as  I  can:  I  thought  it  my  duty  to  risk  myself  for  you.  But  we  shall  not  be 
disavowed  by  the  nation,  and  their  act  of  indemnity  will  confirm  and  not 
weaken  the  Constitution,  by  more  stroiigly  marking  out  its  lines.27 

It  is  very  interesting  to  follow  Jefferson  in  his  perplexity. 
Fear  of  a  change  of  mind  on  the  part  of  Napoleon  led  him  to 
write  to  his  friends  enjoining  silence  concerning  the  consti- 
tutional difficulties  arising  out  of  the  acquisition  of  Louisiana."^ 
An  inkling  of  the  expected  struggle  along  party  lines  is  seen  in 
the  admonition  to  Breckinridge  to  impress  the  necessity  of  the 
presence  of  western  Senators  on  the  first  day  of  the  session  as 


27  IMd.  The  need  of  an  amendment  was  admitted  by  Jefferson  to 
Senator  Plumer.  See  Plumer,  Life  of  William  Plumer,  362-363.  Judge 
Cooley  considered  it  difficult  to  conceive  of  any  doctrine  more  dangerous 
to  the  fundamental  ideas  of  the  American  Union  than  that  the  Constitution 
could  be  ''shut  up"  temporarily  in  order  that  the  Government  might 
accomplish  something  not  warranted  by  it.  ''The  practical  settlement  of 
the  question  of  Constitutional  power,"  says  Cooley,  "did  not  heal  the 
wound  the  Constitution  received  when  the  chief  officer  holding  office  under 
it  advised  the  temporary  putting  it  aside,  and  secured  the  approval  of  his 
advice  by  a  numerical  majority  of  the  people.  The  poison  was  in  the 
doctrine  which  took  from  the  Constitution  all  saeredness,  and  made  subject 
to  the  will  and  caprice  of  the  hour  that  which,  in  the  intent  of  the  founders, 
was  above  parties,  and  majorities,  and  presidents,  and  congresses,  and  was 
meant  to  hold  them  all  in  close  subordination.  After  this  time  the  proposal 
to  exercise  unwarranted  powers  on  a  plea  of  necessity  might  be  safely 
advanced  without  exciting  the  detestation  it  deserved;  and  the  sentiment 
of  loyalty  to  the  Constitution  was  so  far  weakened  that  it  easily  gave  way 
under  the  pressure  of  political  expediency."  Thomas  M.  Cooley,  "The 
Acquisition  of  Louisiana,"  in  Indiana  Historical  Society,  Fublioations,  II, 
no.  3  (1887),  81-88.  See  also  Lodge,  Life  and  Letters  of  George  Cabot, 
333-334. 

28  Jefferson  to  Thomas  Paine,  August  18,  1803,  in  Jefferson,  Writings 
(Ford,  ed.),  VIII,  245  (footnote);  Jefferson  to  Breckinridge,  ibid.,  244- 
245;  Jefferson  to  Secretary  of  State  [Madison],  ibid.,  245. 


26         Canstitutioruil  History  of  the  Louisiana  Purchase 

every  friend  of  the  treaty  was  needed.^^  To  Gallatin  Jefferson 
wrote  that  it  would  be  well  to  say  as  little  as  possible  about  the 
constitutional  difficulty,  and  have  Congress  act  on  it  without 
talking ;  and  yet  in  this  same  letter  he  presented  an  amendment 
to  cover  the  case.^° 

Jeif erson  's  idea  of  an  amendment  to  the  Constitution  was  one 
which  gave  general  powers,  with  specific  exceptions.  He  sub- 
mitted the  substance  of  such  an  amendment  to  Madison : 

Louisiana  as  ceded  by  France  to  the  U.  S.,  is  made  a  part  of  the  U.  S. 
Its  white  inhabitants  shall  be  citizens,  and  stand,  as  their  rights  &  obliga- 
tions, on  the  same  footing  with  other  citizens  of  the  U.  S.  in  analogous 
situations.  Save  only  that  as  to  the  portion  thereof  lying  north  of  the 
latitude  of  the  mouth  of  the  Arkansa  river,  no  new  State  shall  be  estab- 
lished, nor  any  grants  of  land  made  therein,  other  than  to  Indians,  in 
exchange  for  equivalent  portions  of  land  occupied  by  them,  until  amend- 
ment to  the  Constitution  shall  be  made  for  those  purposes. 

Looking  once  more  to  the  future  Jeif  erson  added:  ''Florida 
also,  whenever  it  may  be  rightfully  obtained,  shall  become  a  part 
of  the  U.  S.  Its  white  inhabitants  shall  thereupon  be  citizens,  on 
the  same  footing  with  other  citizens  of  the  U.  S.  in  analogous 
circumstances. '  '^^ 

The  constitutionality  of  the  treaty  and  of  its  provisions  was 
a  topic  of  conversation  between  Jeiferson  and  his  friends,  who 
urged  him  to  take  a  broad  view  of  the  powers  granted  to  the 
Federal  Government  under  the  Constitution.  Wilson  Cary 
Nicholas,  senator  from  Virginia,  in  a  letter  to  Jefferson,  Septem- 
ber 3,  1803,  admitted  having  reflected  much  on  the  subject  of 
the  power  of  the  United  States  to  acquire  territory,  and  to  admit 
new  states  into  the  Union : 

Upon  an  examination  of  the  constitution,  [writes  Nicholas]  I  find  the 
power  as  broad  as  it  could  well  be  made  (3d  par.  4  art.),  except  that  new 


29  Jefferson  to  Breckinridge,  August  18,  1803,  ihid.,  VII,  244-245. 

30  Gallatin,  Writings  (Adams,  ed.),  I,  144-145  (August  23,  1803).  See 
also  Jefferson  to  Levi  Lincoln,  August  30,  1803,  in  Jefferson,  Writings 
(Ford,  ed.),  VIII,  246-247;    (Washington,  ed.),  IV,  504-505. 

31  Jefferson,  Writings  (Ford,  ed.),  VIII,  241-245  (August  25,  1803); 
(Washngton,  ed.),  IV,  503;  Gallatin,  Writings  (Adams,  ed.),  I,  145. 


Constitutional  Right  to  Acquire  Territory  27 

States  cannot  be  formed  out  of  the  old  ones  without  the  consent  of  the 
State  to  be  dismembered;  and  the  exception  is  a  proof  to  my  mind  that 
it  was  not  intended  to  confine  the  congress  in  the  admission  of  new  States 
to  what  was  then  the  territory  of  the  U.  S.  Nor  do  I  see  anything  in  the 
constitution  that  limits  the  treaty-making  power,  except  the  general  limita- 
tion of  the  power  given  to  the  government,  and  the  evident  object  for  which 
the  government  was  instituted.  If  it  is  determined  that  Congress  possess 
exclusively,  all  the  powers  that  are  to  be  found  in  the  enumeration  of 
powers  given  to  that  body,  it  will  be  deciding  that  there  does  not  exist  in 
the  U.  S.  a  power  competent  to  make  a  treaty,  for  I  will  venture  to  assert, 
that  a  treaty  cannot  be  formed,  without  the  exercise  of  one  or  more  of 
those  powers  by  the  president  and  the  Senate,  particularly  a  commercial 
treaty — nor  does  it  seem  to, me  that  the  sanction  of  Congress  wou'd  cure 
the  defect,  &  that  wou'd  be  to  give  them  substantially  the  power  of  rati- 
fication, or  rejection.  Nor  do  I  believe  we  could  ever  expect  any  Nation 
to  form  a  treaty  with  us  under  such  construction  of  our  constitution ;  for  I 
do  not  see  what  wou'd  prevent  subsequent  legislatures  from  repealing  the 
laws  upon  which  the  validity  of  a  treaty  depended;  and  indeed  making 
laws  in  direct  violation  of  such  a  treaty,  if  it  was  admitted  that  it  derived 
all  its  power  from  a  law.  I  am  aware  that  this  is  to  us  delicate  ground, 
and  perhaps  my  opinions  may  clash  with  the  opinions  given  by  our  friends 
during  the  discussion  of  the  British  treaty.32  Upon  due  consideration,  it 
really  appears  to  me  that  a  different  construction  of  the  constitution,  from 
that  Avhich  I  have  given  it,  would  be  to  transfer  the  treaty  making  powers 
to  congress,  or  to  deprive  the  govt  of  the  U.  S.  of  the  capacity  of  making 
treaties.  I  should  be  wanting  in  the  sincerity  and  candour  with  which  you 
have  always  permitted  me  to  give  you  my  opinion  if  I  was  to  forbear  to 
recommend  to  you  to  avoid  giving  an  opinion  as  to  the  competence  of  the 
treaty  making  power,  to  make  such  a  treaty  as  that  lately  entered  into  with 
France,  by  giving  an  opinion  before  the  Senate  act  upon  it,  you  wou  'd  take 
the  whole  responsibility  of  that  opinion  upon  yourself  in  the  public  esti- 
mation, whereas  if  the  Senate  act  before  your  opinion  is  known  they  will 
at  least  divide  the  responsibility  with  you.  I  shou'd  think  it  very  probable 
if  the  treaty  shou  'd  be  by  you  declared  to  exceed  the  constitutional  authority 
of  the  treaty  making  power,  that  it  would  be  rejected  by  the  Senate,  and  if 
that  should  not  happen,  that  great  use  wou  'd  be  made  with  the  people,  of  a 
wilful  breach  of  the  constitution.ss 

Jefferson's  reply  is  a  clear  statement  of  his  stand  on  the 
interpretation  of  the  Constitution,  After  remarking  on  the 
danger   of   delay   and   the   necessity   for   rapid   action   on   the 

32  Jay's  Treaty. 

S3  Jefferson  Papers,  ''Letters  to  Jefferson,  2d.  Series,"  LXIII,  (47); 
Henry  Adams,  History  of  the  United  States,  II,  87-88. 


28  Constitutional  History  of  the  Louisiana  Purchase 

part  of  Congress,  he  turned  his  attention  to  the  constitutional 
*  questions  involved.  Reverting  to  strict  construction  Jefferson 
declared  it  as  his  belief  that  Congress  did  not  have  the  power 
of  admitting  new  states  into  the  Union  outside  the  territory 
owned  at  the  time  of  the  adoption  of  the  Constitution.  Con- 
tinuing he  said : 

When  an  instrument  admits  two  constructions,  the  one  safe,  the  other 
dangerous,  the  one  precise,  the  other  indefinite,  I  prefer  that  which  is  safe 
&  precise.  I  had  rather  ask  an  enlargement  of  power  from  the  nation,  when 
it  is  found  necessary,  than  to  assume  by  a  construction  which  would  make 
our  powers  boundless.  Our  peculiar  security  is  in  the  possession  of  a  written 
Constitution.  Let  us  not  make  it  a  blank  paper  by  construction.  I  say  the 
same  as  to  the  opinion  of  those  who  consider  the  grant  of  the  treaty  making 
power  as  boundless.  If  it  is,  then  we  have  no  Constitution.  If  it  has 
bounds  they  can  be  no  others  than  the  definitions  of  the  powers  which  that 
instrument  gives.  It  specifies  and  delineates  the  operations  permitted  to 
the  federal  government,  and  gives  all  the  powers  necessary  to  carry  these 
into  execution.  Whatever  of  these  enumerated  objects  is  proper  for  a  law, 
Congress  may  make  the  law;  whatever  is  proper  to  be  executed  by  a  treaty, 
the  President  &  Senate  may  enter  into  the  treaty;  whatever  is  to  be  done 
by  a  judicial  seiitence,  the  judges  may  pass  the  sentence.     Nothing  is  more 

likely  than  their   enumeration   of   powers   is   defective Let   us   go    then 

perfecting  it,  by  adding,  by  way  of  the  Constitution,  those  powers  which 
time  &  trial  show  are  still  wanting. ...  I  confess,  then,  I  think  it  important, 
in  the  present  case,  to  set  an  example  against  broad  construction  by 
appealing  for  new  power  to  the  people. 

But  here  again  Jefferson  shows  that  strict  construction  can 
give  way  to  what  is  considered  essential  to  the  comnion  good: 
**If,  however,  our  friends  shall  think  differently,  certainlj^  I 
acquiesce  with  satisfaction;  confiding,  that  the  good  sense  of 
our  country  will  correct  the  evil  of  construction  when  it  shall 
produce  ill  effects."^* 

Jefferson  was  apparently  won  over  to  the  side  of  broad 
construction  for  he  no  longer  held  out  for  an  amendment  to 


34  Jefferson  to  Wilson  C.  Nicholas,  September  7,  1803,  in  Jefferson, 
Writings  (Ford,  ed.),  VIII,  247-248  (footnote);  (Washington,  ed.),  IV, 
505-507. 


Constitutimml  Right  to  Acquire  Territory  29 

the  Constitution.  What  was  necessary  to  be  done  he  left  to 
Congress.^^  Doubtless  such  an  amendment  as  Jefferson  desired 
could  have  been  carried  without  great  difficulty,  but  it  was  not 
proposed,  and  an  important  precedent  for  future  action  in 
regard  to  the  acquisition  of  territory  was  established.  How  far 
Jefferson  was  influenced  by  the  European  situation  it  is  not  neces- 
sary here  to  discuss. ^^ 

The  President  was  not  alone  in  his  appreciation  of  the  con- 
stitutional questions  involved  in  the  purchase  of  Louisiana. 
Although  party  lines  decided  the  attitude  of  the  majority  of  the 
leaders,  nevertheless  an  examination  of  contemporary  opinion 
throws  much  light  on  the  interpretation  of  the  Constitution. 
Fisher  Ames  denounced  the  whole  affair  in  no  uncertain  terms. 
The  less  territory  the  better  was  his  declaration.  By  adding  the 
territory  beyond  the  Mississippi,  ''we  rush  like  a  comet  into 
infinite  space.  In  our  wild  career,  we  may  jostle  some  other 
world  out  of  its  orbit,  but  we  shall,  in  every  event,  quench  the 
light  of  our  own."^^  Yet,  dropping  his  party  bias,  Ames  could 
not  bring  himself  to  assent  to  the  argument  of  the  Federalists, 
now  the  party  of  strict  construction,  that  ''our  government  is 
merely  an  affair  of  special  pleading,  and  to  be  interpreted  in 
every  case  as  if  everything  was  written  down  in  a  book."  Cer- 
tain powers  he  considered  inseparable  from  the  fact  of  a  society 
being  formed,  and  incident  to  its  being.  Then  he  rather  pessi- 
mistically concludes :  ' '  Besides,  as  party  interprets  and  amends 


35  Here  it  must  be  remarked  that  Gallatin,  who  had  argued  so  strongly 
for  broad  construction,  in  commenting  on  the  President's  message  observed 
"that  not  even  Congress  can  prevent  some  constitutional  irregularity  in 
the  proceedings  relative  to  occupying  and  governing  that  country  before  an 
amendment  to  the  Constitution  shall  take  place."  Gallatin,  Writings 
(Adams,  ed.),  I,  158;  remarks  on  the  President's  message  [Received  Oct. 
4,  1803]. 

36  On  this  point  see  Adams,  History  of  the  United  States,  II,  92-93. 

37  Ames  to  Christopher  Gore,  October  3,  1803,  in  Ames,  Works,  I,  323- 
324.  See  also  a  letter  of  Ames  to  Thomas  Dwight,  October  31,  1803,  ihid., 
329-330. 


30         Constitutional  History  of  the  Louisiana  Purchase 

the  Constitution,  and  as  we  the  people  care  not  a  pin's  point  for 
♦it,  all  arguments  from  that  source,  however  solid,  would  avail 
nothing. '  '^^ 

John  Quincy  Adams  was  a  sturdy  defender  of  strict  con- 
struction of  the  Constitution  in  the  Louisiana  affair.  At  a  later 
date  he  criticized  Jefferson  for  getting  into  office  under  the 
banners  of  states'  rights  and  state  sovereignty,  and  the  pretense 
that  the  Government  of  the  Union  had  no  powers  except  those 
expressly  delegated  by  the  Constitution,  and  immediately  pur- 
chasing Louisiana,  "an  assumption  of  implied  power  greater  in 
itself  and  more  comprehensive  in  its  consequences,  than  all  the 
assumptions  of  implied  power  in  the  twelve  years  of  the  Wash- 
ington and  Adams  Administrations  put  together.  "^^ 

In  an  argument  with  Attorney  General  Wirt  over  the  con- 
stitutionality of  the  Louisiana  purchase,  Adams  inquired  where 
in  the  Constitution  the  power  to  purchase  territory  was  located. 
Wirt  answered  that  there  was  a  power  to  make  treaties.  This 
did  not  satisfy  Adams,  who  vehemently  denounced  the  purchase 
as  in  substance  a  dissolution  and  recomposition  of  the  Union: 

It  made  a  Union  totally  different  from  that  for  which  the  Constitution 
had  been  formed.  It  gives  despotic  power  over  territories  purchased.  It 
naturalizes  foreign  nations  in  a  mass.  It  makes  French  and  Spanish  laws 
a  large  part  of  the  laws  of  the  Union.  It  introduced  whole  systems  of 
legislation  abhorrent  to  the  spirit  and  character  of  our  institutions,  and  all 
this  done  by  an  administration  which  came  in  blowing  a  trumpet  against 
implied  power.  After  this,  to  nibble  at  a  bank,  a  road,  a  canal,  the  mere 
mint  and  cummin  of  the  law  was  but  glorious  inconsistency. 

Upon  Wirt's  statement  that  the  people  had  sanctioned  the 
purchase  through  their  representatives  in  Congress,  Adams 
replied  that  this  doctrine  was  too  bold  for  him.*° 

Adams  believed  that  an  amendment  to  the  Constitution  was 
necessary  for  the  carrying  through  of  the  Louisiana  Treaty,  and 

38  Ames  to  Thomas  Dwight,  ibid.,  I,  334. 

39  John  Quincy  Adams,  Memoirs,  V,  364-365    (October  20,  1821). 
^olUd.,  V,  401  (November  17,  1821). 


Constitutimial  Right  to  Acquire  Territory  31 

told  Madison  that  unless  some  one  else  did  so  he  would  consider 
it  his  duty  to  move  such  an  amendment.  Madison  answered  that 
' '  he  did  not  know  that  it  was  universally  agreed  that  it  required 
an  amendment."*^  During  the  debate  in  the  Senate  upon  the 
bill  to  enable  the  President  to  take  possession  of  Louisiana, 
Adams  moved  an  amendment  to  the  last  House  amendment  of 
the  Senate  bill  which  had  come  back  from  the  House,  by  adding 
the  words,  ''consistently  with  the  Constitution  of  the  United 
States."     This  was  ruled  out.*^ 

In  the  autumn  of  1803  when  the  constitutionality  of  the 
recent  purchase  of  Louisiana  was  causing  considerable  agitation, 
Henry  W.  Livingston  wrote  to  Gouverneur  Morris  asking  him 
to  find  out  what  was  the  intention  of  the  framers  of  the  Con- 
stitution on  this  point.    Morris  replied: 

...  It  is  not  possible  for  me  to  recollect  with  precision  all  that  passed 
in  the  Convention,  while  we  were  framing  the  Constitution;  and  if  I  could, 
it  is  most  probable  that  a  meaning  would  have  been  conceived  from  inci- 
dental expressions,  different  from  that  which  they  were  intended  to  convey, 
and  very  different  from  the  fixed  opinions  of  the  speaker.  This  happens 
daily. 

I  am  certain  that  I  had  it  not  in  contemplation  to  insert  a  decree  in 
de  coercendo  imperio  in  the  Constitution  of  America.  Without  examining 
whether  a  limitation  of  territory  be  or  be  not  essential  to  the  preservation 
of  republican  government,  I  am  certain  that  the  country  between  the  Mis- 
sissippi and  the  Atlantic  exceeds  by  far  the  limits,  which  prudence  would 
assign,  if  in  effect  any  limitation  be  required.  Another  reason  of  equal 
weight  must  have  prevented  me  from  thinking  of  such  a  clause.  I  knew 
as  well  then  as  I  do  now,  that  all  North  America  must  at  length  be  annexed 
to  us.  Happy,  indeed,  if  the  lust  for  dominion  stops  there.  It  would, 
therefore,  have  been  perfectly  Utopian  to  oppose  a  paper  restriction  to  the 
violence  of  popular  sentiment  in  a  popular  government.^s 


^^Ihid.,  I,  267-268  (October  28,  1803). 

^2lMd.\  I,  268  (October  29,  1803). 

43  Sparks,  Life  of  Gouverneur  Morris,  III,  185 ;  Farrand,  Becords  of  the 
Federal  Convention,  III,  401.  For  a  difference  in  the  rendering  of  this 
letter,  see  Anne  Cary  Morris,  Diary  and  Letters  of  Gouverneur  Morris,  II, 
441-442.  The  Sparks  edition  seems  to  make  the  better  sense  and  has  been 
generally  accepted. 


32         Constitutional  History  of  the  Louisiana  Fur  chase 

Just  how  much  importance  and  significance  can  be  attached 
^  to  Morris 's  statement  it  would  be  difficult  to  determine,  since  the 
reasons  advanced  may  have  been  made  to  fit  the  accomplished 
deed.  It  is  worth  noting,  however,  that  a  definite  attempt  was 
made  to  ascertain  what  the  men  who  framed  the  Constitution 
themselves  understood  by  its  provisions.  Could  Morris  but  see 
the  wide  extent  of  the  possessions  of  the  United  States  at  the 
present  day  he  might  find  justification  for  his  statement  that 
"paper  restrictions"  would  avail  little  in  the  face  of  American 
expansion.  While  not  all  of  North  America  has  been  annexed, 
the  '4ust  for  dominion"  has  not  stopped  here  but  has  included 
island  possessions  a  great  distance  from  the  original  states  of 
the  Union. 

Morris  was  not  alone  in  his  statement  concerning  "paper 
restrictions."  George  Cabot  feared  that  the  influence  of  New 
England  would  be  diminished  by  the  acquisition  of  territory 
in  the  south.  He  thought  a  paper  Constitution  "too  feeble  a 
barrier  to  obstruct  a  triumphant  majority  in  their  course,"  and 
was  apprehensive  of  any  alteration  they  felt  it  necessary  to 
make.^* 


44  Cabot  to  Pickering,  December  10,  1803,  in  PicJcering  Papers,  ''Letters 
from  Correspondents,  1800-1803,"  XXVI,  336  (Mass.  Hist.  Soc.)  ;  Lodge, 
Life  and  Letters  of  George  Cahot,  333-334. 

The  persistence  of  the  idea  here  expressed  by  Cabot  is  seen  in  his 
biographer's  account  of  Jefferson's  action.  Granting  that  Jefferson  was 
right  in  purchasing  peace,  Lodge  nevertheless  insists  that  in  carrying  out 
his  policy,  Jefferson  violated  the  Constitution.  ''Thus,"  he  says,  "the 
first  example  was  given  of  both  the  will  and  desire  to  violate  the  Constitu- 
tion, if  the  popular  feeling  would  sustain  the  executive  and  the  legislature 
in  so  doing;  and  in  this  fact  lies  the  pernicious  and  crying  evil  of  the 
Louisiana  purchase.  It  was  the  first  lesson  that  taught  Americans  that  a 
numerical  majority  was  superior  to  the  Constitution,  was  a  safe  protection 
against  it  when  violated-,  and  that  when  policy  approved  the  necessity  of 
change,  it  was  easier  to  break  than  to  legally  and  regularly  amend  the 
provisions  of  our  charter."  Lodge,  Life  and  Letters  of  George  Cahot, 
434-435.     Cf.  the  statement  of  Judge  Cooley  already  quoted. 

Alleged  ulterior  motives  for  Jefferson's  action  are  found  in  Quincy's 
Life  of  Josiah  Quincy,  90-91,  where  Jefferson  and  his  partisans  are  accused 
of  deliberately  seizing  the  opportunity  of  giving  Congress  authority  to 
multiply  new  states  in  foreign  territories  without  any  appeal  to  the  states, 
their  object  being  to  add  slave  states  to  the  Union.  There  is  no  ground  for 
such  a  charge. 


Constitutional  Bight  to  Acquire  Territory  33 

Manasseh  Cutler  was  of  practically  the  same  opinion  as 
Cabot.  Besides  declaring  that  the  treaty  was  a  ^'flagrant  viola- 
tion of  the  principles  of  the  Constitution,"  he  repeated  the 
much-held  New  England  opinion  that  the  admission  into  the 
Union  of  a  new  state  formed  from  this  territory  would  throw 
the  balance  of  political  power  to  the  southern  states,  and  in  all 
probability  ''will  lay  the  foundation  for  a  separation  of  the 
States.  "^^ 

Although  not  referring  to  the  Louisiana  country,  the  position 
of  the  United  States  with  regard  to  the  acquisition  of  foreign 
territory  was  stated  by  Robert  R.  Livingston  in  a  conversation 
reported  by  Barbe  Marbois.  In  answer  to  Marbois's  statement 
that  many  French  politicians  were  afraid  that  the  United  States 
would  eventually  conquer  the  French  West  Indies,  Livingston 
denied  that  this  would  ever  take  place.  Although  the  whites 
there  required  to  be  protected  against  the  slave  population, 

it  would  be  contrary  to  our  institutions  and  even  our  interests  to  undertake 
this  charge. . . .  Should  these  colonies  hereafter  wish  to  belong  to  us  and 
to  enter  into  the  Union,  we  could  not  receive  them;  we  could  still  less  have 
them  as  dependent  and  subject  possessions.  I  do  not  foresee  what  will 
happen  if,  in  their  emergencies,  they  should  resort  to  our  generosity  and 
protection.  But  do  not  fear  that  we  shall  ever  make  the  conquest  of  that 
which  we  would  not  wish  to  accept  even  as  a  gift.*^ 

Substituting  Spanish  insular  possessions  for  French,  Living- 
ston's ''emergencies"  have  arisen.  We  have  made  the  conquest 
and  they  have  been  made  "dependent  and  subject  possessions." 
Whether  they  will  remain  so  is  one  of  the  interesting  problems 
for  the  future  to  solve. 

One  of  the  strongest  defenders  of  the  purchgise  of  Louisiana, 
and  on  constitutional  grounds  at  that,  was  found  among  the 
leaders  of  the  Federalist  party  at  the  very  time  when  party 


45  Cutler  to  Dr.  Torrey,  October  31,   1803,  in  Cutler  and  Cutler,  Life, 
Journals  and  Correspondence  of  Manasseh  Cutler,  II,  138. 

46  Barbe  Marbois,  History  of  Louisiana,  299. 


34         Constitutional  History  of  the  Louisiana  Purchase 

spirit  was  beginning  to  run  high  in  New  England.  This  was 
John  Adams,  who,  writing  to  Josiah  Quincy,  February  9,  1811, 
gave  one  of  the  best  arguments  possible  in  support  of  the  act 
of  the  Jefferson  administration : 

The  Union  appears  to  me  to  be  the  rock  of  our  salvation,  and  e very- 
reasonable  measure  for  its  preservation  is  expedient.  Upon  this  principle, 
I  own  I  was  pleased  with  the  purchase  of  Louisiana,  because,  without  it, 
we  could  never  have  secured  and  commanded  the  navigation  of  the  Mis- 
sissippi. The  western  country  would  infallibly  have  revolted  from  the 
Union,  Those  States  would  have  united  with  England,  or  Spain,  or  France, 
or  set  up  an  independence,  or  done  anything  else  to  obtain  the  free  use 
of  that  river.  I  wish  the  Constitution  had  been  more  explicit,  or  that  the 
States  had  been  consulted;  but  it  seems  Congress  have  not  entertained  any 
doubts  of  their  authority,  and  I  cannot  say  that  they  are  destitute  of 
plausible  arguments  to  support  their  opinion. ... 

But  I  was  saying  a  word  upon  the  Constitution.  You  appear  to  be 
fully  convinced  that  the  Convention  had  it  not  in  contemplation  to  admit 
any  State  or  States  into  our  Confederation,  then  situated  without  the 
limits  of  the  thirteen  States.  In  this  point  I  am  not  so  clear.  The  Con- 
stitution, it  is  true,  must  speak  for  itself,  and  be  interpreted  by  its  own 
phraseology;  yet  the  history  and  state  of  things  at  the  time  may  be  con- 
sulted to  elucidate  the  meaning  of  words,  and  determine  the  bona  fide 
intention  of  the  Convention.  Suppose  we  should  admit  for  argument's 
sake,  that  no  member  of  the  Convention  foresaw  the  purchase  of  Louisiana! 
It  wiU  not  follow  that  many  of  them  did  not  foresee  the  necessity  of 
conquering,  some  time  or  other,  the  Floridas  and  New  Orleans,  and  other 
territories  on  this  side  of  the  Mississippi;  the  state  of  things  between  this 
country  and  Spain  in  1787,  was  such  as  to  render  the  apprehensions  of  a 
war  with  that  power  by  no  means  improbable,  the  boundaries  were  not 
settled,  the  navigation  of  the  river  was  threatened,  and  Spain  was  known 
to  be  tampering,  and  England  too. 

You  think  it  impossible  the  Convention  could  have  a  thought  of  war 
with  Great  Britain,  and  the  conquest  of  Canada.  In  this  point  I  differ  from 
you  very  widely.  The  conduct  of  Great  Britain,  and  the  conduct  of  our 
States,  too,  was  such  as  to  keep  up  very  serious  apprehensions  between 
the  two  powers.  The  treaty  of  peace  was  not  fulfilled,  on  either  side.  The 
English  had  carried  away  the  negroes,  in  direct  violation  of  a  most  express 
stipulation;  they  held  possession  by  strong  garrisons  of  a  long  train  of 
posts  within  our  territory,  commanding  many  nations  of  Indians,  among 
whom  they  excited  dispositions  hostile  to  us;  the  limits  were  not  settled 
against  Nova  Scotia,  and  many  turbulences  between  the  inhabitants  arose. 


C 07istitutional  Bight  to  Acquire  Territory  35 

On  the  other  side  the  old  debts  were  not  paid,  and  positive  laws  existed  in 
many,  if  not  most,  of  the  States,  against  their  recovery.  I  therefore  think 
it  highly  probable  that  the  Convention  meant  to  authorize  Congress  in 
future  to  admit  Canada  and  Nova  Scotia  into  the  Union,  in  case  we  should 
have  a  war,  and  be  obliged  to  conquer  them  by  kindness  or  force.*^ 

One  staunch  supporter  of  the  Jefferson  administration  took 
the  stand  that  the  cession  of  Louisiana  gave  additional  security 
to  the  free  form  of  the  Constitution.  Had  the  French  remained 
in  possession  of  that  country  and  colonized  it,  the  United  States 
would  have  been  forced  to  maintain  a  large  standing  army.  The 
result  would  have  been  heavy  taxes  for  the  maintenance  of  this 
army,  and  an  expensive  patronage.  Republican  forms  of  gov- 
ernment would  have  been  undermined  and  the  way  paved  for 
the  concentration  of  power  in  the  hands  of  an  hereditary  mon- 
arch.*^ 

Any  doubts  as  to  the  constitutional  right  of  the  United  States 
Government  to  acquire  territory  were  laid  to  rest  by  Chief  Jus- 
tice Marshall  in  1828  when  he  declared:  ''The  Constitution 
confers  absolutely  on  the  Government  of  the  Union  the  powers 
of  making  war,  and  of  making  treaties ;  consequently,  that  Gov- 
ernment possesses  the  power  of  acquiring  territory,  either  by 
conquest  or  by  treaty."*^ 


47  John  Adams,  Works,  IX,  631-632.  This  strong  statement  does  not 
appear  to  have  been  used  in  the  arguments  from  precedent  and  from  the 
opinions  of  early  statesmen  cited  in  the  Insular  Cases. 

48  David  Eamsay,  An  Oration  on  the  Cession  of  Louisiana  to  the  United 
States  (1804),  14. 

49  American  Insurance  Co.  vs.  Canter,  I  Peters,  511. 


CHAPTEE  III 

THE   STATUS  OF   THE   ACQUIRED   TERRITORY: 
CONTEMPORARY  OPINION 

What  was  to  be  the  status  of  the  acquired  territory?  From 
the  standpoint  of  constitutional  interpretation  this  question 
proved  a  difficult  one  to  answer.  Many  and  divergent  were  the 
answers  proposed.  There  might  be  practically  a  consensus  of 
opinion  in  favor  of  the  acquisition  of  territory:  that  seemed 
in  harmony  with  the  ideas  held  by  a  large  majority  of  the  people 
of  the  United  States  as  to  the  power  of  a  sovereign  nation. 
Could,  however,  such  acquired  territory  be  formed  into  states 
and  be  admitted  into  the  Union  on  an  equal  footing  with  the 
original  states?  If  so,  by  whose  authority?  Would  not  the 
'' balance  of  power"  among  the  old  states  be  upset?  Was  not 
the  consent  of  each  of  the  parties  to  the  original  contract 
under  the  Constitution  a  necessary  prerequisite  to  the  admission 
of  new  states  into  the  Union?  On  the  other  hand,  could  the 
United  States  hold  territory  not  destined  at  some  future  day  to 
become  a  state?  Contemporary  opinion  on  these  questions 
throws  much  light  on  the  interpretation  of  the  Constitution  by 
men  who  lived  near  to  the  time  when  that  instrument  of  gov- 
ernment was  framed. 

The  relation  Louisiana  would  bear  to  the  rest  of  the  United 
States  aroused  comment  at  the  time  of  the  acquisition.  One 
contemporary  writer  stated  the  questions  for  the  Government 
to  decide  as  follows: 

1.  Whether  this  territory,  under  the  peculiar  limitations  of  the  Federal 
Constitution  can  immediately  be  admitted  into  the  Union  with  the  States? 

2.  Whether  it  is  considered  under  those  subordinate  relations  to  the 
United  States,  that  characterize  the  Indiana  and  Mississippi  territories?  or, 


Status  of  the  Acquired  Territory  37 

3.  Whether  the  cession  by  treaty  attaches  itself  to  the  empire  as  a  fief, 
to  be  held  upon  the  same  principles  as  the  Scotch  and  Irish  Unions,  and 
the  island  of  Jamaica  and  Canada,  by  the  crown  of  England  ?i 

Another  writer  who  styles  himself  ' '  Sylvestris "  questioned 
whether,  if  a  portion  of  West  Florida  could  be  obtained  from 
Spain,  it  might  not  be  worthy  of  an  amendment  of  the  Consti- 
tution to  incorporate  that  territory,  together  with  the  territory 
of  New  Orleans,  with  the  present  government  on  the  Mississippi, 
and  admit  the  whole  into  the  Union  as  a  new  state,  as  soon  as 
the  population  entitled  it  to  such  admission.^ 

Still  another  considered  it  farcical  to  pretend  that  the 
Louisiana  territory  could  not  be  erected  into  separate  estab- 
lishments, all  associated  under  one  federal  compact.  Such  a 
confederation  could  as  well  be  maintained  between  twenty  as 
between  seventeen  independent  states.  Furthermore,  the  inter- 
change of  commercial  commodities  would  not  fail  to  convince 
both  the  North  and  South  of  the  special  advantages  of  each,  and 
bind  them  more  closely  to  one  another.^ 

In  making  plans  for  the  acceptance  of  Louisiana,  Jefferson 
felt  it  necessary  to  come  to  a  decision  as  to  the  footing  on  which 
the  new  territory  was  to  be  placed,  and  to  put  this  plan  in  the 
hands  of  friends  in  Congress.  Considering  an  amendment  to 
the  Constitution  as  the  proper  mode,  he  sketched  one  to  be 

1  Allan  B.  Magruder,  Political,  Commercial  and  Moral  Eeflections,  on 
the  late  cession  of  Lousiana  to  the  United  States  (1803),  95.  Magruder 
did  not  think  the  expansion  of  territory  could  produce  any  dangerous 
effect.  While  it  was  true  that  when  a  new  state  was  formed  in  Louisiana, 
the  Federal  circle  would  be  expanded,  the  state  governments  merely  receded 
in  point  of  ''geographical  mensuration"  from  the  general  seat  of  govern- 
ment. Louisiana's  remote  situation  would  not  give  either  more  power  to 
itself  or  diminish  the  influence  of  the  Federal  Government.     Ihid.,  73. 

Magruder  was  a  native  of  Kentucky  but  had  moved  to  Louisiana.  He 
took  an  active  part  in  politics,  being  a  state  representative,  and  serving 
as  United  States  senator  from  Louisiana  from  November  18,  1812,  to 
March  3,  1813. 

2  Sylvestris,  pseud.,  Eeflections  on  the  Cession  of  Louisiana  to  the  United 
States  (1803),  26-27. 

3  David  A.  Leonard,  An  Oration . . .  on  the  late  acquisition  of  Louisiarffa 
(1804),  20. 


38         Constitutional  History  of  the  Louisiana  Purchase 

proposed  by  Congress  to  the  states  as  soon  as  Congress  should 
meet.  This  amendment  he  submitted  to  members  of  the  Cabinet 
for  suggestions  or  approval.* 

The  amendment  was  in  harmony  with  Jefferson's  idea  of 
strict  construction  of  the  Constitution,  for  practically  every  con- 
ceivable contingency  was  provided  for  and  legislative  action  was 
stringently  circumscribed.  The  text  of  the  proposed  amendment 
was  as  follows: 

The  province  of  Louisiana  is  incorporated  with  the  U.  S.  and  made  part 
thereof.  The  rights  of  occupancy  in  the  soil,  and  of  self-government,  are 
confirmed  to  the  Indian  inhabitants,  as  they  now  exist.  Pre-emption  only 
of  the  portions  rightfully  occupied  by  them  &  a  succession  to  the  occupancy 
of  such  as  they  may  abandon,  with  the  full  rights  of  possession  as  well  as 
of  property  &  sovereignty  in  whatever  is  not  or  shall  cease  to  be  so  right- 
fully occupied  by  them  shall  belong  to  the  U.  S. 

The  legislature  of  the  Union  shall  have  authority  to  exchange  the  right 
of  occupancy  in  portions  where  the  U.  S.  have  full  right  for  lands  pos- 
sessed by  Indians  within  the  U.  S.  on  the  East  side  of  the  Mississippi:  to 
exchange  lands  on  the  East  side  of  the  river  for  those  of  the  white  inhab- 
itants on  the  West  side  thereof  and  above  the  latitude  of  31  degrees:  to 
maintain  in  any  part  of  the  province,  such  military  posts  as  may  be  requisite 
for  peace  or  safety:  to  exercise  police  over  all  persons  therein,  not  being 
Indian  inhabitants:  to  work  salt  springs,  or  mines  of  coal,  metals  and  other 
minerals  within  the  possession  of  the  U.  S.  or  in  any  others  with  the 
consent  of  the  possessors;  to  regulate  trade  &  intercourse  between  the 
Indian  inhabitants  and  all  other  persons;  to  explore  and  ascertain  the 
geography  of  the  province,  its  productions  and  other  interesting  circum- 
stances; to  open  roads  and  navigation  therein  when  necessary  for  beneficial 
communication;  &  to  establish  agencies  and  factories  therein  for  the  culti- 
vation of  commerce,  peace  and  good  understanding  with  the  Indians 
residing  there. 

The  legislature  shall  have  no  authority  to  dispose  of  the  lands  of  the 
province  otherwise  than  as  hereinbefore  permitted,  until  a  new  Amendment 
of  the  constitution  shall  give  that  authority.  Except  as  to  that  portion 
thereof  which  lies  South  of  the  latitude  of  31  degrees;  which  whenever  they 
deem  expedient,  they  may  erect  into  a  territorial  Government,  either  sep- 

4  Jefferson  to  Gallatin,  July  9,  1803,  in  Jefferson  Papers,  ''Letters  from 
Jefferson,  1st  Series,  1802-1803,"  IX  (96). 


status  of  the  Acquired  Territory  39 

arate  or  as  making  part  with  one  on  the  eastern  side  of  the  river,  vesting  the 
inhabitants  thereof  with  all  the  rights  possessed  by  other  territorial  citizens 
of  the  U.  S.5 

The  weak  points  in  this  lengthy  plan  of  amendment  were 
pointed  out  by  Secretary  of  the  Navy  Robert  Smith,  to  whom 
it  had  been  submitted  by  Jefferson.  While  agreeing  with  the 
general  purpose  of  the  proposed  amendment,  Smith  doubted  the 
advisability  of  attaching  so  many  provisions  to  the  Constitution.^ 

Regarding  the  Indian  question  and  occupancy  of  lands. 
Smith  asked  if  it  might  not  be  better  to  leave  this  to  be  settled 
by  legislative  provision.  He  felt  that  if  the  Indian  rights  of 
occupancy  became  a  part  of  the  Constitution  the  Government 
might  find  itself  much  entangled,  especially  in  its  dealings  with 
hostile  Indians.'^ 

Jefferson  was  not  alone  in  laying  plans  for  the  acceptance 
of  the  territory  and  arranging  for  its  control.  It  was  taken  for 
granted  that  the  treatj^  would  be  ratified  by  the  Senate.  As 
early  as  July  9,  1803,  over  three  months  before  Congress  met, 
Gallatin,  as  Secretary  of  the  Treasury,  began  considerations  of 
the  problem  of  revenue  in  Louisiana,  particularly  that  drawn 
from  duties  on  imports  and  exports.  The  amount  of  exports, 
especially  the  articles  like  cotton,  indigo  and  sugar — the  latter 
most  important  of  all — which  paid  duty  on  their  importation 
into  the  United  States  was  a  subject  under  investigation.  The 
revenue  collected  by  the  United  States  from  sugar  Gallatin  esti- 
mated at  not  less  than  nine  hundred  thousand  dollars  a  year. 
It  was  therefore  important  to  ascertain  the  quantity  annually 
exported  from  New  Orleans,  in  order  either  to  find  means  of 
supplying  the  deficiency  of  revenue  should  sugar  be  imported 


5  Jefferson,  Writings  (Ford,  ed.),  VIII,  241-249. 

6  lUd. 

7  Smith  to  Jefferson,  July  9,  [18]03,  in  Jefferson,  Writings  (Ford,  ed,), 
VIII,  241-242  (footnote). 


40         Constitutional  History  of  the  Louisioma  Purchase 

from  there  duty  free,  or  to  devise  a  method  by  which  the  duty 
might  still  be  collected. 

My  present  idea  [wrote  Gallatin]  was  that  until  an  amendment  to  the 
Constitution  had  been  adopted,  all  the  duties  oi;i  imports  now  payable  in 
the  United  States  should  be  likewise  paid  on  importations  to  New  Orleans. 
All  the  duties  on  exports  now  payable  at  New  Orleans  by  Spanish  laws 
should  cease,  and  all  articles  of  the  growth  of  Louisiana  which,  when 
imported  into  the  United  States,  now  pay  duty,  should  continue  to  pay  the 
same,  or  at  least  such  rates  as  would,  on  the  whole,  not  affect  the  revenue.s 

Gallatin's  letter  is  significant  in  several  respects.  The  idea 
that  the  Constitution  would  be  amended  to  allow  the  treaty  of 
cession  to  be  carried  into  execution  was  brought  out  once  more. 
Of  particular  interest  in  the  light  of  the  Insular  Decisions  is 
Gallatin's  opinion  concerning  the  revenue,  which  was  an  im- 
portant phase  of  the  question  of  the  status  of  the  acquired 
territory.  While  extending  the  import  duties  payable  in  the 
United  States  to  Louisiana  and  dropping  duties  on  exports 
under  Spanish  laws,  Gallatin,  as  will  be  noticed,  planned  to  con- 
tinue to  impose  duties  on  articles  imported  into  the  United  States 
from  Louisiana.  Gallatin's  reason,  as  he  himself  gives  it,  was 
one  of  expediency — the  collection  of  a  revenue.  Nevertheless  the 
imposition  of  these  import  duties  would  set  Louisiana  apart 
from  the  rest  of  the  territory  of  the  United  States. 

On  October  31,  Gallatin,  in  accordance  with  his  under- 
standing of  the  situation,  informed  Claiborne,  who  was  to  take 
possession  of  Louisiana,  that  the  existing  duties  on  imports  and 
exports,  being  levied  in  that  province  under  Spanish  law,  should 
continue  until  Congress  should  otherwise  provide.^ 

8  Gallatin  to  Jefferson,  July  9,  1803,  in  Gallatin,  Writings  (Adams,  ed.), 
I,  127. 

9  Gallatin,  Writings  (Adams,  ed.),  I,  167.  Gallatin's  opinion  in  this 
matter  was  cited  in  the  Insular  Cases,  175,  176-178,  316-317. 

Compare  the  statement  in  Moore,  Digest  of  International  Law,  I,  311: 
*^When  Florida  was  ceded  to  the  United  States  and  possession  of  it  had 
actually  been  taken  it  was  held  by  the  Secretary  of  the  Treasury,  whose 
opinion  was  sanctioned  by  the  Attorney-General,  that,  under  our  revenue 
laws,  its  ports  must  be  regarded  as  foreign  until  they  were  established  as 
domestic  by  an  act  of  Congress." 


Status  of  the  Acquired  Territory  41 

Congress  soon  made  the  provision  spoken  of  by  Gallatin  by 
an  act,  approved  February  24,  1804,  for  laying  and  collecting 
duties  on  imports  and  tonnage  within  the  ceded  territory.  This 
act  provided  that  the  same  duties  which  were  laid  on  goods 
imported  into  the  United  States  should  be  laid  and  collected  on 
goods  imported  into  Louisiana. 

All  laws  laying  any  duties  on  goods  imported  into  the  United 
States  from  the  ceded  territory  were  repealed.  Furthermore, 
the  President  was  authorized  to  erect  the  shore,  waters  and  inlets 
of  the  bay  and  river  Mobile  into  a  separate  district  and  establish 
a  port  of  entry  and  delivery  ^^ whenever  he  shall  deem  it  expedi- 
ent/'^^ The  full  significance  of  this  last  provision  became 
apparent  when  the  West  Florida  question  became  acute.^^ 

The  plan  of  an  amendment  which  would  leave  but  little 
initiative  in  the  hands  of  the  Legislature  was  early  given  up  by 
Jefferson.  Even  before  the  drafting  of  a  second  amendment^^ 
he  wrote  to  Horatio  Gates  that,  ''If  our  legislature  dispose  of  it 
[the  territory]  with  the  wisdom  we  have  a  right  to  expect,  they 
may  make  it  the  means  of  tempting  all  our  Indians  on  the  East 
side  of  the  Mississippi  to  remove  to  the  West,  and  of  condensing 
instead  of  scattering  our  population. ' '  In  the  same  letter  Jeffer- 
son drops  some  hints  as  to  the  contemplated  government  of  the 
territory.  He  did  not  think  it  would  be  a  separate  government, 
but  presumed  New  Orleans  and  the  settled  country  across  the 
river  would  be  annexed  to  the  Mississippi  Territory.  The  rest 
would  be  locked  up  from  American  settlement  and  left  to  the 
self-government  of  the  natives.^^ 

In  his  Third  Annual  Message  to  Congress,  October  17,  1803, 
Jefferson  announced  the  transfer  of  Louisiana  by  France  to 
the  United  States,  adding  that  when  the  transfer  had  been  sanc- 


^0  Laws  of  the  U.  States,  III,  569-574.     Italics  mine. 

11  See  below,  Chapters  X  and  XI. 

12  For  which,  see  above. 

13  Jefferson  to  Horatio  Gates,  July  11,    [18]  03,  in  Jefferson,   Writings 
(Ford,  ed.),  VIII,  249-250. 


42         ConsUtutioTml  History  of  the  Louisimia  Purchase 

tioned  by  the  Senate,  the  matter  would  be  laid  before  the  House 

^  of  Representatives  ''for  the  exercise  of  their  functions,  as  to 

those  conditions  which   are  within  the   powers  vested  by  the 

constitution  in  Congress."^* 

Then  comes  a  clear  statement  of  the  powers  of  Congress  over 

territories : 

With  the  wisdom  of  Congress  it  will  rest  to  take  those  ulterior  meas- 
ures which  may  be  necessary  for  the  immediate  occupation  and  temporary 
government  of  the  country;  for  its  incorporation  into  our  Union;  for  ren- 
dering the  change  of  government  a  blessing  to  our  newly-adopted  brethren; 
for  securing  to  them  the  rights  of  conscience  and  of  property;  for  con- 
firming to  the  Indian  inhabitants  their  occupancy  and  self-government, 
establishing  friendly  and  commercial  relations  with  them,  and  for  ascertain- 
ing the  geography  of  the  country  acquired.i^ 

On  October  21,  1803,  Jefferson  submitted  a  special  message 
on  Louisiana  to  Congress,  announcing  the  exchange  of  ratifica- 

14  Italics  mine. 

At  least  one  Senator  considered  the  language  used  in  the  message  im- 
proper for  a  President.  *'He  not  only  publicly  pledges  himself  to  ratify 
the  treaties  if  the  Senate  shall  advise  thereto,  but  takes  it  for  granted  that 
the  Senate  will  sanction  them.  As  far  as  his  influence  can  extend  this  is 
destroying  the  freedom  of  opinion  in  the  Senate  on  that  subject. ' '  Plumer, 
''Memorandum,"  October  17,  1803-March  27,  1804,  2-3.  Plumer  might 
have  stated  his  objections  even  more  emphatically  had  he  seen  the  corre- 
spondence of  Jefferson  and  his  closest  friends  in  which  the  ratification  was 
not  only  taken  for  granted  but  plans  made  for  the  government  of  the 
territory,  even  before  Congress  met. 

Plumer 's  disapprobation,  in  substance,  was  revived  during  the  admin- 
istration of  McKinley  when  that  President  was  criticized  for  issuing,  on 
December  21,  1898,  prior  to  the  ratification  of  the  treaty  with  Spain  ceding 
the  Philippines,  an  executive  order  which  contained  the  following  words: 
''With  the  signature  of  the  treaty  of  peace  between  the  United  States  and 
Spain  by  their  respective  plenipotentiaries  at  Paris  on  the  10th  instant, 
and  as  the  result  of  the  victories  of  American  arms,  the  future  control, 
disposition,  and  government  of  the  Philippine  Islands  are  ceded  to  the 
United  States.  In  fulfilment  of  the  rights  of  sovereignty  thus  acquired, 
etc."  The  treaty-making  power  of  the  United  States  did  not  ratify  the 
treaty  until  February,  and  the  treaty  did  not  go  into  effect  until  April  11, 
1899.  W.  W.  Willoughby,  The  Constitutional  Law  of  the  United  States, 
I,  385,  footnote. 

15  Jefferson,  Writings  (Ford,  ed.),  VIII,  268-269;  Richardson,  Messages 
and  Papers  of  the  Presidents,  I,  358-359.  Italics  mine.  Compare  the 
sentiment  expressed  here  with  that  in  the  proposed  amendment.  Jefferson 's 
opinion  of  the  powers  of  Congress  over  the  territories  underwent  numerous 
changes.  These  will  be  discussed  under  the  subject  of  the  government  of 
Louisiana. 


Status  of  the  Acquired  Territory  43 

tions  between  the  President  and  the  First  Consul  of  France.  He 
asked  for  a  consideration  of  the  treaty  and  conventions  by  Con- 
gress in  its  legislative  capacity.  He  pointed  out  that  some 
important  provisions  could  not  be  carried  into  execution  without 
the  aid  of  the  Legislature,  and  urged  a  decision  without  delay.^^ 

What  composed  the  constitutional  rights  of  the  House  of 
Representatives  in  regard  to  the  treaty  caused  considerable 
debate.^^ 

Other  questions  of  constitutional  interpretation,  fraught  with 

very  great  significance  to  the  well-being  of  the  nation,  were 

raised. 

Congress  [Rufus  King  wrote]  may  admit  new  States,  but  can  the 
Executive  by  treaty  admit  them,  or,  what  is  equivalent,  enter  into  engage- 
ments binding  Congress  to  do  so?  As  by  the  Louisiana  Treaty,  the  ceded 
territory  must  be  formed  into  States,  &  admitted  into  the  Union,  is  it 
understood  that  Congress  can  annex  any  condition  to  their  admission?  if 
not,  as  Slavery  is  authorized  &  exists  in  Louisiana,  and  the  treaty  engages 
to  protect  the  Property  of  the  inhabitants,  will  not  the  present  inequality, 
arising  from  the  Eepresentation  of  Slaves  be  increased? 

King  desired  that  the  representation  and  taxation  might  be  lim- 
ited to  free  inhabitants  only.^® 

Pickering,  referring  to  King's  letter,  claimed  that  the  ruling 
party  did  not  pretend  that  the  Louisianians  were  citizens  of  the 
United  States;  nor  had  they  ventured  to  say  that  the  Govern- 
ment had  a  constitutional  power  to  incorporate  the  new  country 
into  the  Union.  To  him  it  appeared  evident  that  in  a  few  years, 
when  their  power  had  become  more  confirmed,  they  would  erect 
states  in  the  territory  and  incorporate  those  states  into  the  Union. 
The  future  to  Pickering  had  a  dark  outlook,  for  the  Constitution 

16  Jefferson,  Writings  (Ford,  ed.),  VIII,  274;  Richardson,  Messages 
and  Papers  of  the  Presidents,  I,  362-363. 

17  See  below. 

18  King  to  Colonel  Pickering,  November  4,  1803,  in  King,  Life  and  Corre- 
spondence of  Eufus  King,  IV,  324-325,  ''Letter  prohaMy  to  Pickering": 
doubt  removed  by  examination  of  the  original  letter,  Pickering  Papers, 
''Letters  from  Correspondents  1800-1803,"  XXVI,  319  (Mass.  Hist.  Soc, 
Library).  See  Madison's  opinion  on  the  question  of  imposing  restrictions 
on  prospective  states,  p.  48. 


44         Constitutional  History  of  the  Louisiana  Purchase 

would  become  only  a  convenient  instrument  to  be  shaped,  by 
construction,  into  any  form  that  would  best  promote  the  views 
of  the  operators.  He  concluded  with  the  remark  that  it  might 
be  better  if  we  had  no  Constitution,  for  ''the  leaders  of  the 
populace  wanting  the  function  of  a  Constitutional  power  might 
then  be  more  cautious  in  their  measures. '  '^^ 

Gouverneur  Morris  declared  that  he  was  not  sorry  that  the 
Louisiana  treaty  had  been  ratified  and  provision  made  for  carry- 
ing it  into  effect  in  accordance  with  the  wish  of  the  President. 
He  added  that  by  their  acts  the  Democrats  had  done  more  to 
strengthen  the  Executive  than  the  Federalists  had  ever  dared  to 
contemplate.^"  Reverting  to  the  inquiry  made  by  Henry  W. 
Livingston^^  Morris  wrote,  December  4,  1803 : 

A  circumstance,  which  turned  up  in  conversation  yesterday  has  led  me 
again  to  read  over  your  letter  of  the  third  of  November,  and  my  answer 
of  the  twenty-eighth.  I  perceive  now,  that  I  mistook  the  drift  of  your 
inquiry,  which  is  substantially  whether  Congress  can  admit,  as  a  new 
State,  territory,  which  did  not  belong  to  the  United  States  when  the 
Constitution  was  made.     In  my  opinion  they  cannot. 

I  always  thought  that,  when  we  should  acquire  Canada  and  Louisiana 
it  would  be  proper  to  govern  them  as  provinces,  and  allow  them  no  voice 
in  our  councils.22  In  wording  the  third  section  of  the  fourth  article,  I  went 
as  far  as  circumstances  would  permit  to  establish  the  exclusion.  Candor 
obliges  me  to  add  my  belief  that,  had  it  been  more  pointedly  expressed,  a 
strong  opposition  would  have  been  made.23 

It  could  probably  be  shown  that  this  policy  would  have  been 
more  dangerous  to  the  Government  than  the  overthrow  of  the 
balance  of  power  by  the  admission  of  new  states,  from  which  the 

19  Pickering  to  Eufus  King,  March  3,  1804,  in  Fickering  Papers,  ''Letters 
to  his  Correspondents,  1801-1813,"' XIV,  97   (Mass.  Hist.  Soc.  Library). 

20  Sparks,  Life  of  Gouverneur  Morris,  III,  184. 

21  See  above. 

22  Morris 's  opinion  does  not  harmonize  with  the  spirit  of  article  eleven 
of  the  Articles  of  Confederation  which  made  specific  provision  for  the 
admission  of  Canada  into  the  Union. 

23  Sparks,  Life  of  Gouverneur  Morris,  III,  192 ;  Farrand,  Eecords  of 
the  Federal  Convention,  III,  404. 


Status  of  the  Acquired  Territory  45 

New  Englanders  claimed  to  fear  so  much.  Fortunately  for  the 
future  of  the  new  Republic  this  interpretation  of  the  Consti- 
tution was  not  accepted.  Morris,  however,  persisted  in  the 
belief  that  the  admission  of  the  inhabitants  of  the  ceded  territory 
into  the  Union  would  prove  dangerous.  He  pessimistically  re- 
marked that  at  the  rate  things  were  going,  'Hhe  Constitution 
cannot  last,  and  an  unbalanced  monarchy  will  be  established  on 
its  ruins.  "2* 

One  of  the  staunchest  supporters  of  strict  construction  of 
the  Constitution  throughout  the  struggle  over  Louisiana  was 
John  Quincy  Adams.  He  confessed  that  the  whole  subject  had 
caused  him  sleepless  nights.^^  He  complained  that  Pickering, 
who  differed  with  him  on  the  Louisiana  matter,  was  guided  by 
expediency  rather  than  by  constitutional  right. ^^  The  question 
of  taxing  the  people  of  Louisiana  without  their  own  consent  was 
abhorrent  to  Adams.  He  therefore  moved  in  the  Senate  the 
adoption  of  the  following  resolutions: 

Besolved,  That  the  people  of  the  United  States,  have  never,  in  any 
manner  delegated  to  this  Senate,  the  power  of  giving-  its  legislative  con- 
currence to  any  act  for  imposing  taxes  upon  the  inhabitants  of  Louisiana, 
without  their  consent. 

Besolved,  That  by  concurring  in  any  act  of  legislation  for  imposing 
taxes  upon  the  inhabitants  of  Louisiana  without  their  consent,  this  Senate 
would  assume  a  power,  unwarranted  by  the  constitution  and  dangerous  to 
the  people  of  the  United  States. 

Besolved,  That  the  power  of  originating  bills  for  raising  revenue,  being 
exclusively  vested  in  the  House  of  Eepresentatives,  these  resolutions  be 
carried  to  them  by  the  Secretary  to  the  Senate:  that  whenever  they  think 
proper  they  may  adopt  such  measures  as  to  their  wisdom  may  appear 
necessary  and  expedient  for  raising  and  collecting  a  revenue  from  Louis- 
iana. 2  7 


24  Morris   to   Jonathan   Dayton,   January    7,    1804,   in   Sparks,   Life   of 
Gouverneur  Morris,  III,  203. 

25  John  Quincy  Adams,  Memoirs  (Adams,  ed.),  I,  285,  January  8,  1804. 
26lhid.,  I,  289,  January  15,  1804. 

27  John  Quincy  Adams,  Writings   (Ford,  ed.),  HI,  25-26;  Memoirs,  I, 
286  (footnote). 


46         Constitutional  History  of  the  Louisiana  Purchase 

A  vote  was  taken  upon  each  resolution.  The  first  and  second 
^  were  rejected  by  twenty-one  to  four.  The  third  was  unanimously 
rejected.^^ 

Adams  believed  that  the  consent  of  the  people  of  the  United 
States  and  of  the  people  of  Louisiana  was  necessary  to  make 
Louisiana  a  part  of  the  American  Union.  France  could  only 
cede  her  property  right  to  the  territory;  while  the  right  of  sov- 
ereignty inherent  in  the  people  must  be  ceded  by  an  act  of  their 
own  and  acquired  by  some  act  of  the  people  of  the  United 
States.^^  Considering  an  amendment  to  the  Constitution  neces- 
sary, he  drafted  one  and  submitted  it  to  Madison  and  Pickering, 
neither  of  whom  approved  of  it.  The  tenor  of  the  amendment  was 
a  grant  of  general  power  to  Congress  to  annex  new  territories 
to  the  Union  at  its  discretion.  The  exercise  of  sovereign  powers 
by  Congress  over  the  people  of  Louisiana  Adams  considered  an 
assumption  of  power  not  delegated.  However,  this  power  hav- 
ing been  acquiesced  in,  there  was  no  constitutional  obstacle  to 
the  admission  of  Louisiana  into  the  Union  as  a  state.  He  did 
not  think  it  the  intention  of  the  framers  of  the  Constitution  to 
limit  the  admission  of  new  states  into  the  Union  to  the  original 
territory  of  the  United  States.  Such  an  intention  would  have 
probably  been  expressed.  A  comparison  of  the  Articles  of  Con- 
federation with  the  Constitution  showed,  said  Adams,  that  the 
power  to  admit  new  states  was  substituted  for  the  clause  author- 
izing the  admission  of  Canada.  The  power  in  the  Constitution 
applied  to  the  admission  of  states  within  the  original  territory 
of  the  Union,  but  there  was  no  reason  to  believe  that  it  was 
intended  to  apply  so  exclusively. 

*  *  Manifest  destiny ' '  again  comes  to  the  fore  and  Adams 
concluded : 


28  John  Quincy  Adams,  Memoirs  (Adams,  ed.),  I,  287,  January  10,  1804. 

29  See  Adams 's  speech  in  the  Senate,  February  18,  1804,  as  reported  by 
Plumer,  in  Chapter  VII. 


status  of  the  Acquired  Territory  47 

The  whole  continent  of  North  America  appears  to  be  destined  by  Divine 
Providence  to  be  peopled  by  one  nation,  speaking  one  language,  professing 
one  general  system  of  religious  and  political  principles,  and  accustomed  to 
one  general  tenor  of  social  usages  and  customs.  For  the  common  happiness 
of  them  all,  I  believe  it  indispensable  that  they  should  be  associated  in  one 
federal  Union.3o 

Pickering  expressed  himself  as  in  favor  of  something  more 
practical  than  the  doctrine  proposed  by  Adams.  He  held  that 
the  people  were  accustomed  to  such  transfers  and  to  being  ruled 
without  their  inclinations  being  consulted.  He  would  give 
individuals  no  option  except  quiet  obedience  or  expatriation. 
He  would  provide  for  a  gradual  amelioration  of  their  laws,  in 
conformity  with  the  principles  of  our  own  jurisprudence,  win- 
ning their  affections  and  assimilating  them  as  fast  as  possible 
to  the  character  of  citizens  of  the  United  States.^^ 

To  Adams 's  inquiry  by  what  clause  in  the  Constitution  Pick- 
ering deemed  Congress  authorized  to  tax  and  govern  Louisiana, 
Pickering  answered  that  Congress  in  its  legislative  capacity  was 
often  obliged  to  legislate  in  cases  where  correct  theory  forbade 
it,  negro  slavery  being  an  example.  Although  some  stipulations 
in  the  treaty,  or  even  the  purchase  itself,  were  not  warranted 
by  the  Constitution ;  and  although  the  abstract  theory  of  govern- 
ment forbade  the  taxing,  or  the  imposing  of  laws  on  any  people 
without  their  own  consent;  yet  with  regard  to  Louisiana,  it 
having  become  in  fact  a  province  of  the  United  States  the 
"general  welfare"  required  Congress  ''to  provide"  for  its  gov- 
ernment. Pickering  expressed  himself  as  willing  to  cooperate 
in  forming  the  same  regulations  for  the  "general  welfare"  as 
would  have  been  proper  had  Louisiana  been  in  all  respects 
constitutionally  acquired.^^ 

30  Letter  to  John  Adams,  August  31,  1811,  in  John  Quincy  Adams, 
Writings  (Ford,  ed.),  IV,  204^210.  See  also  Henry  Adams,  Documents 
relating  to  New  England  Federalism,  52-55. 

31  Pickering  to  Stephen  Higginson,  January  14,  1804,  in  Pickering 
Papers,  ''Letters  to  his  Correspondents,  1801-1803,"  XIV,  84. 

32  Pickering  to  Higginson,  January  16,   1804,  ibid.,  XIV,   89. 


48         Canstitutional  History  of  the  Louisiana  Purchase 

Echoes  of  the  Louisiana  question  and  its  results,  directly 
and  indirectly,  can  be  traced  far  down  even  into  Madison 's  writ- 
ings. Perhaps  no  man  was  better  qualified  than  he  to  say  what 
the  meaning  of  the  Constitution  was.  His  clear-cut  way  of  going 
immediately  to  the  heart  of  any  question  is  well  illustrated  in 
this  connection.  On  the  admission  of  Missouri  into  the  Union 
Madison  wrote : 

As  to  the  power  of  admitting  new  States  into  the  federal  compact,  the 
questions  offering  themselves  are:  whether  congress  can  attach  conditions, 
or  the  new  States  concur  in  conditions,  which  after  admission,  would 
abridge  or  enlarge  the  constitutional  rights  of  legislation  common  to  the 
other  States;  whether  Congress  can  by  a  compact  with  a  new  member  take 
power  either  to  or  from  itself,  or  place  the  new  member  above  or  below 
the  equal  rank  and  rights  possessed  by  the  others;  whether  all  such  stipu- 
lations, expressed  or  implied  would  not  be  nullities,  and  so  pronounced  when 
brought  tp  a  practical  test 33 

*'0n  the  whole,"  said  Madison,  ''the  Missouri  question,  as 
a  constitutional  one,  amounts  to  the  question  whether  the  con- 
dition proposed  to  be  annexed  to  the  admission  of  Missouri 
would  or  would  not  be  void  in  itself,  or  become  void  the  moment 
the  territory  should  enter  as  a  State  within  the  pale  of  the  Con- 
stitution. "^*  The  truth  of  this  statement  is  borne  out  by  the 
history  of  the  territorial  expansion  of  the  United  States. 

Constitutional  construction  was  at  the  bottom  of  the  whole 
matter  of  the  acquisition  of  territory  with  its  inhabitants,  turn- 
ing on  the  right  to  acquire  and  to  admit  when  acquired.^^ 


33  Madison  to  Robert  Walsh,  November  27,  1819,  in  Madison,  Writings 
(Hunt,  ed.),  IX,  6-7. 

34  Ihid.,  IX,  12. 

35  Madison  to  James  Robertson,  April  20,  1831,  in  Madison,  Letters  and 
other  Writings  (Congressional  ed.),  IV,  171. 


CHAPTER  IV 

THE  DEBATE  ON  THE  TREATY:  THE  TREATY-MAKING 

POWERS 

As  soon  as  the  news  that  the  President  had  signed  the  treaty 
became  known  there  arose  at  once  the  question  of  the  interpre- 
tation of  the  constitutional  provisions  concerning  treaty-making. 
Jefferson  had  been  warned  of  possible  difficulties  on  this  score 
by  both  Madison  and  Gallatin.  The  draft  of  the  President's 
message  of  October  17  had  been  submitted  to  Madison,  who, 
under  date  of  October  1,  commented  on  it.  He  thought  it  well 
to  avoid  '^what  the  theory  of  our  constitution  does  not  seem 
to  have  met,  the  influence  of  deliberations  and  anticipations  of 
the  H.  of  Reps,  on  a  Treaty  depending  in  the  Senate."  Delay 
might  arise  from  the  doubtfulness  and  novelty  of  a  communi- 
cation of  a  treaty  negotiated  by  the  Executive  to  both  Houses 
for  their  respective  deliberations.^ 

Gallatin  thought  the  treaty  ought  not  to  be  laid  before  both 
Houses  of  Congress  until  after  ratification  by  the  Senate.  ' '  The 
House  of  Representatives,"  he  wrote,  *' neither  can  nor  ought 
to  act  on  the  treaty  until  after  it  is  a  treaty."  Great  care,  he 
continued,  should  be  taken  against  possible  encroachment  upon 
the  constitutional  rights  of  the  Senate.  Grants  of  money  or 
other  legislative  acts  for  enabling  the  Executive  to  carry  on  a 
negotiation  could  be  asked  for  before  the  negotiation  had  been 
opened  or  the  treaty  received.     After  the  negotiation  had  been 


1  For  a  recent  general  treatment  of  this  topic  see  W.  W.  Willoughby, 
The  Constitutional  Law  of  the  United  States,  I,  Chapters  ^XXII-XXXV; 
also  Samuel  B.  Crandall,  Treaties:  Their  Making  and  Enforcement. 

2  Jefferson,  Writings  (Ford,  ed.),  VIII,  266  (footnote).  That  it  was 
not  wise  for  the  House  to  take  part  in  treaty-making  was  laid  down  by 
John  Jay  in  the  Federalist  (Ford,  ed.),  no.  64.  See  also  no.  75  by  Ham- 
ilton. 


50         Constituticmal  History  of  the  Louisiana  Purchase 

.closed  and  the  treaty  signed,  as  in  the  case  at  hand,  the  House 
need  not  be  consulted  until  ratification  by  the  President  and 
Senate  has  been  completed.^ 

Just  what  claims  to  participation  in  treaty-making  the 
House  would  put  forth  were  soon  evident.  On  October  22,  1803, 
it  was  reported  to  the  House  that  the  conventions  entered  into 
with  the  Government  of  France  for  the  cession  of  Louisiana  to 
the  United  States  had  been  ratified  by  the  Senate  and  were  laid 
before  the  House  in  its  legislative  capacity,  John  Randolph 
submitted  a  resolution  providing  for  the  carrying  into  effect  of 
the  treaty  and  conventions.  This  was  submitted  to  a  committee 
to  which  the  President's  message  had  been  referred.* 

Two  days  later,  October  24,  Gaylord  Griswold  of  New  York 
moved  a  resolution  asking  that  the  President  be  requested  to 
have  laid  before  the  House  a  copy  of  the  treaty  between  France 
and  Spain,  entered  into  October  1,  1800,  together  with  a  copy 
of  the  deed  of  cession  of  Louisiana  from  Spain  to  France  under 
that  treaty,  if  such  deed  existed;  also  copies  of  any  correspon- 
dence which  might  have  taken  place  between  the  Governments 
of  the  United  States  and  Spain  which  would  show  the  assent 
or  dissent  of  Spain  to  the  cession  of  Louisiana  to  the  United 
States,  together  with  any  other  documents  in  possession  of  the 
American  Government  showing  that  the  United  States  had 
really  acquired  title  to  the  possession  of  Louisiana.^ 

Varying  degrees  of  opinion  became  evident  in  the  debate 
which  followed  the  introduction  of  this  resolution.  John  Ran- 
dolph opposed  the  resolution  and  was  answered  by  Goddard  of 
Connecticut.  Smilie  of  Pennsylvania  also  opposed  the  motion, 
and  quoted  Washington's  reply  to  the  House  on  the  demand 
for  the  papers  in  relation  to  Jay's  Treaty.     Elliot  of  Vermont 

3  Gallatin,  Writings  (Adams,  ed.),  I,  156;  remarks  received  by  Jefferson 
October  4. 

^AnnaJs  of  Congress,  8  Cong.,  1  Sess.   (1803-1804),  382. 
5Ihid.,  385. 


The  Treaty-Making  Power  51 

opposed  the  call  on  the  Executive  for  papers,  while  Thacher  of 
Massachusetts  spoke  for  the  resolution.  Nicholson  of  Maryland 
favored  the  call  for  the  papers  on  the  treaty  but  not  the  recog- 
nition of  any  claim  of  Spain.  Mitchill  of  New  York  acknowl- 
edged the  right  of  the  House  to  request  of  the  President  the 
copies  of  the  papers  mentioned  in  the  resolution  under  debate; 
his  opposition  to  the  resolution  arose  from  the  persuasion  he 
felt,  that  the  papers  were  unnecessary,  and  some  of  them  im- 
possible to  obtain.® 

The  question  was  taken  on  agreeing  to  the  first  part  of  the 
resolution  which  requested  the  President  to  cause  to  be  laid 
before  the  House  a  copy  of  the  treaty  between  France  and  Spain, 
of  October  1,  1800,  and  was  carried  by  the  casting  vote  of  the 
Speaker.  The  other  parts  of  the  motion  were  lost.  The  original 
motion  was  amended  to  read : 

Eesolved,  That  the  President  of  the  United  States  be  requested  to  cause 
to  be  laid  before  the  House  a  copy  of  the  treaty  between  the  French  Repub- 
lic and  Spain,  on  the  1st  October,  1800,  together  with  a  copy  of  any  instru- 
ment in  possession  of  the  Executive,  showing  that  the  Spanish  Government 
has  ordered  the  province  of  Louisiana  to  be  delivered  to  the  Commissary  or 
other  agent  of  the  French  Government. 

The  motion  was  lost  by  the  close  vote  of  fifty-nine  to  fifty-seven."^ 
On  October  25,  the  House  went  into  the  Committee  of  the 
Whole  for  consideration  of  measures  for  carrying  the  treaty 
into  effect.^  Gaylord  Griswold  desired  to  know  where  was  to 
be  found  the  constitutional  power  of  the  Government  to  incorpo- 
rate the  territory  with  its  inhabitants  into  the  Union  of  the 
United  States,  with  the  privileges  of  the  United  States.  The 
constitutional  right  of  making  treaties,  he  said,  was  vested  in  the 
President  and  Senate  and  a  treaty  made  by  them  on  a  subject 
constitutionally   within  their  treaty-making   power,   was  valid 


6  Ibid.,  387-402. 
TlUd.,  418-419. 
»Ibid.,  432. 


52         Constitutional  History  of  the  Louisimm  Purchase 

without  the  consent  of  the  House.  The  House  could  refuse  the 
necessary  means  of  carrying  treaties  into  effect  but  this  power 
was  not  the  same  as  that  conferred  by  the  Constitution.  Should, 
however,  the  treaty-making  power  be  exceeded,  it  ought  not  to  be 
carried  into  effect.  Even  a  beneficial  measure,  if  it  violated  the 
Constitution,  should  be  resisted.  Quoting  the  third  article  of 
the  treaty,  Griswold  declared : 

Here  then  is  a  compact  between  the  French  Government  and  that  of  the 
United  States,  to  admit  to  citizenship  persons  out  of  the  jurisdiction  of 
the  United  States,  as  it  now  is,  and  to  admit  territory  out  of  the  United 
States,  to  be  incorporated  into  the  Union.  He  did  not  find  in  the  Con- 
stitution such  a  power  vested  in  the  President  and  Senate.  If  such  a  power 
be  not  expressly  vested,  it  must  be  reserved  to  the  people.  It  was  not 
consistent  with  the  spirit  of  the  Constitution  that  territory  other  than  that 
attached  to  the  United  States  at  the  time  of  the  adoption  of  the  Consti- 
tution should  be  admitted;  because  at  that  time  the  persons  who  formed  the 
Constitution  of  the  United  States  had  a  particular  respect  to  the  then 
subsisting  territory. 

Even  though  the  framers  of  the  Constitution  had  looked  forward 
to  a  greater  population  they  had  not  intended  that  an  addition 
of  territory  large  enough  to  overbalance  all  the  rest  should  be 
made.  He  did  not  believe  that  any  such  power  had  been  dele- 
gated to  any  department  of  the  Government.  If  it  had  been 
placed  anywhere  it  must  rest  with  the  Legislature,  for  the  Con- 
stitution states  that  new  states  are  to  be  admitted  into  the  Union 
by  Congress.^  This  provision,  however,  related  to  the  then 
existing  territory  of  the  United  States.  Power  to  incorporate 
new  territory  did  not  exist;  but  if  this  power  did  exist  the 
Legislature,  and  not  the  Executive,  could  incorporate  the  terri- 
tory into  the  Union.  It  was  the  duty  of  the  House,  he  concluded, 
to  resist  the  usurped  power  exercised  by  the  Executive.^*^ 

Griswold  also  took  exception  to  the  seventh  article  of  the 
treaty,   which  provided  that  the  ships  of  France   and   Spain 

9  Article  4,  section  3. 

10  Annals  of  Congress,  8  Cong.,  1  Sess.   (1803-1804),  432-433. 


The  Treaty-Making  Power  53 

should  have  the  same  right,  under  certain  conditions  and  for  a 
term  of  twelve  years,  of  entering  the  ports  of  the  ceded  territory 
as  those  of  the  United  States.  The  inference  was  that  a  favor 
was  being  granted  to  the  port  of  New  Orleans  over  other  ports 
of  the  United  States.  Such  discrimination  was  contrary  to  the 
ninth  section  of  the  first  article  of  the  Constitution  which  states 
that  "no  preference  shall  be  given  by  any  regulation  of  com- 
merce or  revenue  to  the  ports  of  one  State  over  those  of  another. ' ' 
The  treaty  becoming  a  law  of  the  land,  had  made  a  commercial 
regulation,  giving  the  ports  of  the  ceded  territory  a  preference 
to  any  other  ports.  Giving  an  advantage  to  the  ports  in  ques- 
tion would  be  "a  fatal  blow  proposed  against  the  Constitution 
of  the  United  States,  for  it  would  destroy  the  reciprocity  of 
interest  that  unites  at  present  the  different  members  of  the 
Union.  "1^ 

John  Kandolph  answered  Griswold  by  stating  clearly  the 
treaty-making  powers  as  he  interpreted  them : 

If  the  Government  of  the  United  States  possess  the  Constitutional 
power  to  acquire  territory  from  foreign  States,  the  Executive,  as  the  organ 
by  which  we  communicate  with  such  States,  must  be  the  prime  agent,  in 
negotiating  such  an  acquisition.  Conceding,  then,  that  the  power  of  con- 
firming this  act,  and  annexing  to  the  United  States  the  territory  thus 
acquired,  ultimately  rests  with  Congress,  where  has  been  the  invasion  of 
the  privileges  of  that  body?  Does  not  the  President  of  the  United  States 
submit  this  subject  to  Congress  for  their  sanction?  Does  he  not  recognize 
the  principle  . .  .  that  no  treaty  is  binding  until  we  pass  the  laws  for  execut- 
ing it — that  the  powers  conferred  by  the  Constitution  on  Congress  cannot 
be  modified  or  abridged,  by  any  treaty  whatever — that  the  subjects  of  which 
they  have  cognizance  cannot  be  taken,  in  any  way,  out  of  their  jurisdiction? 
...  As  to  the  initiative,  in  a  matter  like  this,  it  necessarily  devolved  on  the 
Executive.i2 

Roger  Griswold  of  Connecticut  was  not  altogether  satisfied 
with  the  interpretation  here  given.  While  declaring  that  the 
power  of  making  treaties  belonged  exclusively  to  the  President, 


iij&t<2.,   434. 
12  lUd.,  436-437. 


54         Constitutional  History  of  the  Louisiana  Purchase 

with  the  consent  of  the  Senate,  and  that  a  treaty,  constitution- 
ally made  and  ratified,  became  a  law  and  must  be  executed,  he 
still  maintained  that  the  treaty  must  be  consistent  with  the 
Constitution  in  every  respect.  A  treaty  repugnant  to  the  Con- 
stitution either  in  subject-matter  or  in  form  of  ratification  could 
not  be  constitutionally  considered  a  treaty.  Congress,  in  such 
a  case,  was  bound  to  support  the  Constitution  and  refuse  its 
consent  to  laws  which  would  infringe  that  instrument.^^ 

Nicholson  took  it  upon  himself  to  answer  the  charge  that  the 
President  and  Senate  have  no  right  to  pledge  the  Government 
for  anything  not  immediately  within  their  own  powers.  He 
pointed  out  that  the  President  and  Senate  have  the  treaty- 
making  power  but  nearly  all  of  the  treaties  ratified  by  them 
contain  stipulations  which  must  be  performed  by  the  House,  if 
performed  at  all.  This  had  been  the  case  in  the  last  convention 
made  with  Great  Britain,  in  which  the  President  and  Senate 
pledged  the  United  States  to  the  payment  of  six  hundred  thou- 
sand pounds  sterling,  yet  no  constitutional  power  to  do  so  was 
possessed  by  them;  nor  could  the  money  have  been  paid  without 
the  concurrence  of  the  House.  No  doubt  of  the  constitutionality 
of  this  stipulation  had  been  held.  Furthermore,  no  question  had 
been  raised  over  the  pledge  in  the  present  treaty  to  pay  to  France 
fifteen  million  dollars,  although  the  treaty  could  not  be  carried 
into  effect  without  the  cooperation  of  the  House. 

Nicholson  also  discussed  the  point  made  by  Roger  Griswold 
that  since  the  treaty  embraced  objects  not  in  the  power  of  the 
General  Government,  the  whole  treaty  was  invalid.  This,  he 
held,  was  not  true.  Impossible  covenants  in  a  treaty  might  be 
void  and  not  invalidate  the  rest.  There  was  a  distinction  be- 
tween articles  of  a  treaty  which  were  violated  by  one  party,  and 
articles  which  from  the  nature  of  things,  or  from  previous 
engagements,  were  void.  As  a  precedent  he  cited  the  Treaty  of 
Peace  with  Great  Britain,  concluded  in  1783,  the  fourth  article 


isAnn<ils  of  Congress,  8  Cong.,  1  Sess.   (1803-1804),  460. 


The  Treaty-Making  Power  55 

of  which  provided  that  creditors  on  either  side  should  meet  with 
no  lawful  impediments  to  the  recovery  of  debts  contracted  pre- 
vious to  the  war.  This  was  a  stipulation  impossible  for 
Congress  to  perform.  In  the  matter  of  debts  the  individual 
states  had  uncontrolled  authority.  While  the  right  to  make 
treaties  had  been  given  to  the  General  Government  by  the 
Articles  of  Confederation,  the  assent  of  the  states  was  necessary 
before  this  part  of  the  treaty  could  be  carried  out.  This  article 
was  invalid,  and  never  fulfilled  on  the  part  of  the  United  States, 
yet  the  whole  treaty  was  not  thereby  nullified.  Nicholson  held 
that  even  if  it  should  be  determined  that  Congress  could  not 
admit  the  ceded  territory  into  the  Union  as  a  state,  yet  the 
remainder  of  the  treaty  with  France  would  remain  valid.^* 

It  was  not  in  the  House  alone  that  the  extent  of  the  treaty- 
making  power  was  under  probe.  On  November  2,  when  the 
Senate  resumed  the  second  reading  of  the  bill,  entitled,  ''An 
act  authorizing  the  creation  of  a  stock  to  the  amount  of  eleven 
millions  two  hundred  and  fifty  thousand  dollars,  for  the  purpose 
of  carrying  into  effect  the  convention  of  the  30th  of  April,  1803, 
between  the  United  States  of  America  and  the  French  Republic 
and  making  provisions  for  the  payment  of  the  same,"  a  debate 
arose  on  the  question :  shall  the  bill  pass  ?^^  White  of  Delaware 
declared  that  the  United  States  must  have  possession  of  New 
Orleans  and  such  other  places  on  the  Mississippi,  necessary  to 
secure  the  complete  and  uninterrupted  navigation  of  that  river. 
This  much  was  essential  to  the  peace  of  the  United  States  and 
to  the  prosperity  of  the  West.  ''But  as  to  Louisiana,  this  new, 
immense,  unbounded  world,  if  it  should  ever  be  incorporated 
into  this  Union,  which  I  have  no  idea  can  be  done  but  by  alter- 
ing the  Constitution,  I  believe  it  will  be  the  greatest  curse  that 
could  at  present  befall  us."^^ 

14  lUd.,  468-470. 
i^lhid.,  31. 
^^lUd.,  33. 


56         Constitutional  History  of  the  Louisiana  Purchase 

The  constitutional  right  to  acquire  by  treaty  a  small  area 
does  not  seem  to  have  troubled  Senator  White:  a  larger  area 
was  another  matter.  The  friends  of  the  bill  were  not  slow  in 
pointing  out  the  weakness  of  this  argument.^^ 

The  lack  of  power  under  the  Constitution  not  only  of  the 
treaty-making  body,  but  of  any  or  all  departments  of  govern- 
ment as  they  existed,  was  set  forth  by  Senator  Pickering  of 
Massachusetts  in  his  classic  exposition  of  the  state-compact 
theory  of  the  formation  of  the  Federal  Government : 

'The  Constitution  and  the  laws  of  the  United  States  made  in  pursuance 
thereof,  and  all  treaties  made,  or  which  shall  be  made,  shall  be  the  supreme 
law  of  the  land,  'is  But  a  treaty  to  be  obligatory,  must  not  contravene  the 
Constitution,  nor  contain  any  stipulations  which  transcend  the  powers  therein 
given  to  the  President  and  Senate.  The  treaty  between  the  United  States 
and  the  French  Republic,  professing  to  cede  Louisiana  to  the  United  States, 
appeared  to  him  to  contain  an  exceptionable  stipulation — a  stipulation 
which  cannot  be  executed  by  any  authority  now  existing.  It  is  declared 
in  the  third  article,  that  the  inhabitants  of  the  ceded  territory  shall  be 
incorporated  in  the  Union  of  the  United  States.  But  neither  the  President 
and  Senate,  nor  the  President  and  Congress,  are  competent  to  such  an  act 
of  incorporation.  He  believed  that  our  Administration  admitted  that  this 
incorporation  could  not  be  effected  without  an  amendment  of  the  Consti- 
tution, and  he  conceived  that  this  necessary  amendment  could  not  be  made 
in  the  ordinary  mode  by  the  concurrence  of  two-thirds  of  both  Houses  of 
Congress,  and  the  ratification  of  the  Legislatures  of  three-fourths  of  the 
several  States.  He  believed  the  assent  of  each  individual  State  to  be  neces- 
sary for  the  admission  of  foreign  country  as  an  associate  in  the  Union:  in 
like  manner  as  in  a  commercial  house,  the  consent  of  each  member  would 
be  necessary  to  admit  a  new  partner  into  the  company. 

Pickering,  however,  ''had  never  doubted  the  right  of  the  United 
States  to  acquire  new  territory  either  by  purchase  or  conquest 
and  to  govern  the  territory  so  acquired  as  a  dependent  prov- 
ince. "i« 


17  See  below. 

18  Article  6,  clause  2. 

iQ  Annals  of  Congress,  8  Cong.,  1  Sess.   (1803-1804),  44-45. 


The  Treaty-Making  Power  57 

A  still  different  interpretation  was  presented  by  John  Taylor 
of  Virginia  in  answer  to  the  objections  made  to  the  treaty ;  first, 
that  the  United  States  could  not  constitutionally  acquire  terri- 
tory ;  and  second,  that  the  treaty  stipulated  for  the  admission  of 
a  new  state  into  the  Union,  a  stipulation  with  which  the  treaty- 
making  power  could  not  comply.  Taylor  argued  that  before  the 
formation  of  the  Confederation,  each  state,  being  sovereign, 
possessed  the  right  to  acquire  territory:  this  right  it  either  still 
held,  or  had  surrendered  to  the  General  Government.  This 
power  was  not  possessed  by  the  states  separately  because  the 
states  were  prohibited  by  the  Constitution  from  engaging  in 
war  or  entering  into  compacts  with  another  state  or  with  foreign 
powers.  No  other  means  of  acquiring  territory  existed.  By 
taking  from  each  state  the  means  of  exercising  the  right  of 
acquiring  territory,  the  Constitution  had  taken  from  each  state 
the  right  itself.  On  the  other  hand,  neither  the  means  nor  the 
right  of  acquiring  territorj^  were  forbidden  to  the  United  States ; 
and  the  fourth  article  of  the  Constitution  even  empowered  Con- 
gress ''to  dispose  of  and  regulate  the  territory  belonging  to  the 
United  States. ' '  The  right  of  the  United  States  to  hold  territorj^ 
was  thus  recognized.  The  means  of  acquiring  territory  consisted 
of  war  and  compact.  Both  being  expressly  surrendered  to  Con- 
gress and  prohibited  to  the  several  states,  it  followed,  according 
to  Taylor,  that  these  attributes  of  sovereignty  once  held  by 
each  state  were  thus  transferred  to  the  United  States,  annexed 
to  the  treaty-making  power,  and  the  power  of  making  war;  or 
literally  granted  by  the  Constitution  to  the  General  Govern- 
ment.^^ 

Nicholas  held  it  to  be  rather  extraordinary  that  arguments 
to  show  the  unconstitutionality  of  the  treaty  should  be  made  in 
the  Senate,  to  prevent  its  execution,  after  the  treaty  had  already 


2oiUd.,  50. 


58         Constitutional  History  of  the  Louisiana  Purchase 

been  ratified  by  that  body.  This  action  having  been  taken  it  was 
not  necessary  to  answer  arguments  denying  the  power  of  the 
Government  to  make  such  a  treaty.  The  only  question  at  stake 
was  whether  the  bill  ought  to  pass  at  that  time.  The  principle 
had  been  decided  when  the  British  Treaty  was  under  discussion 
that  the  treaty-making  power  of  the  Government  was  so  limited 
that  the  consent  and  cooperation  of  Congress  was  necessary 
before  engagements  to  pay  money  could  be  carried  into  effect. 
In  the  Constitution  the  treaty-making  powers  were  not  specified 
nor  were  any  reservations  made ;  but  from  this  it  was  not  to  be 
inferred  that  the  treaty-making  power  was  unlimited.  If  special 
grants  of  power  to  Congress  were  to  be  considered  as  limitations 
of  the  treaty-making  power,  the  power  of  making  treaties  did 
not  substantially  exist  in  the  Government,  for  a  commercial 
treaty  could  not  be  formed  without  interfering  with  the  Con- 
gressional power  to  regulate  commerce,  lay  and  collect  duties, 
imposts,  etc.,  and  every  other  treaty  would  require  the  payment 
of  money  or  some  other  stipulation  calling  for  the  exercise  of 
some  power  vested  in  Congress. 

To  make  ours  a  practical  Government,  [declared  Nicholas]  it  must  be 
understood  that  the  treaty-making  power  may  negotiate  respecting  many 
of  the  subjects  upon  which  Congress  may  legislate,  but  that  Congress  are 
not  bound  to  carry  into  execution  such  compacts  (where  an  act  of  theirs  is 
necessary  to  give  them  effect)  unless  they  approve  of  them.  And  this  must 
be  fully  understood  by  all  nations  with  whom  such  compacts  may  be  formed. 
Upon  every  other  subject  proper  for  a  national  compact,  not  inconsistent 
with  our  Constitution,  and  under  the  limitations  by  me  stated,  a  treaty  may 
be  negotiated  and  absolutely  concluded  by  the  treaty-making  power,  so  as 
to  bind  the  nation. ...  By  the  British  Treaty  a  great  number  of  persons  had 
a  right  to  become  American  citizens  immediately;  not  only  without  a  law, 
but  contrary  to  an  existing  law.  And  by  that  treaty  many  of  the  powers 
specially  given  to  Congress  -vyere  exercised  by  the  treaty-making  power. 


If  the  third  article  of  the  treaty  is  an  engagement  to  incorporate  the 
Territory  of  Louisiana  into  the  Union  of  the  United  States,  and  to  make 
it  a  State,  it  cannot  be  considered  as  an  unconstitutional  exercise  of  the 


The  Treaty-Making  Power  59 

treaty-making  power;  for  it  will  not  be  asserted  by  any  rational  man  that 
the  territory  is  incorporated  as  a  State  by  the  treaty  itself;  when  it  is 
expressly  declared  that  'the  inhabitants  shall  be  incorporated  in  the  Union 
of  the  United  States,  and  admitted  as  soon  as  possible,  according  to  the 
principles  of  the  Federal  Constitution. '  Evidently  referring  the  question 
of  incorporation,  in  whatever  character  it  was  to  have  taken  place,  to  the 
competent  authority;  and  leaving  it  to  that  authority  to  do  it,  at  such  time, 
and  in  such  manner,  as  they  may  think  proper. 

This  would  be  done  by  Congress  or  by  an  amendment  to  the 
Constitution  for  in  no  other  way  could  a  State  be  admitted  into 
the  Union. 2^ 

Cocke  of  Tennessee  pointed  out  that  the  objections  being 
made  to  the  treaty  were  not  consistent  with  the  opinions  formally 
delivered  by  those  who,  a  short  time  before,  advocated  the  taking 
of  New  Orleans  and  the  Floridas  by  military  force. ^^  He  per- 
tinently demanded  whether  the  Constitution  had  formed  a 
barrier  then.  Presenting  an  extremely  broad  interpretation  of 
the  Constitution,  Cocke  contended  that  the  treaty-making  powers 
were  ' '  competent  to  the  full  and  free  exercise  of  their  best  judg- 
ment in  making  treaties,  without  limitation  of  power;  for,  on 
every  subject  in  which  that  power  is  called  to  act,  it  must  act 
on  its  own  responsibility. '  ^  According  to  Cocke 's  interpretation, 
the  treaty-making  power  passes  out  of  the  hands  of  the  people 
by  their  consent,  and  for  a  time  limited  by  them,  is  vested  in  the 
President  and  Senate.  There  it  remains  until  the  time  set  by 
the  people  for  the  resumption  of  their  elective  rights. ^^ 

So  sweeping  a  power  for  the  treaty-making  branch  of  the 
Government  was  not  held  by  many  of  Cocke's  contemporaries 
but  it  met  with  growing  favor  in  the  years  following  the  Spanish- 
American  War  of  1898. 


21  Ihid.,  68-71.  It  is  very  doubtful  if  a  saner  interpretation  of  the 
constitutional  provision  for  the  treaty-making  powers  has  been  made  than 
this  by  Nicholas. 

22  See  above. 

2^  Annals  of  Congress,  8  Cong.,  1  Sess.   (1803-1804),  71-73. 


60         Constitutional  History  of  the  Louisiana  Purchase 

The  vote  on  the  passage  of  the  bill  to  create  eleven  million 
two  hundred  and  fifty  thousand  dollars  of  stock  to  pay  for 
Louisiana  was  carried  in  the  Senate  by  a  vote  of  twenty-six  to 
five,  those  opposing  it  being  Hillhouse  and  Tracy  of  Connecticut, 
Pickering  of  Massachusetts,  and  White  and  Wells  of  Delaware.^* 

Senator  Plumer  had  voted  against  ratifying  the  treaty  but 
voted  in  favor  of  the  bill  for  creating  the  stock  to  pay  for  the 
territory.  His  justification  of  his  action  in  the  latter  case  was 
that  the  President  and  Senate,  the  only  tribunal  established  to 
make  treaties,  had  declared  the  instrument  to  be  a  treaty;  and 
this  question  having  been  settled,  the  faith  of  the  nation  was 
pledged  to  make  the  necessary  appropriations.  The  treaty,  by 
action  of  the  President  and  Senate,  having  become  a  law,  Plumer 
did  not  consider  himself  at  liberty  to  withhold  his  vote  on  the 
ground  either  that  the  treaty  was  unconstitutional,  or  that  it 
was  a  bad  bargain.  Those  questions  as  they  related  to  the 
Senate,  were,  for  him,  definitely  settled. 

Plumer  declined  to  say  that  the  ratification  made  the  treaty 
a  constitutional  one,  if  its  articles  violated  the  Constitution.  Its 
ratification,  however,  bound  the  Government  to  carry  it  into 
effect  so  far  as  the  Government  had  authority  to  do  so.  ' '  Perish 
the  eleven  millions  of  stock,"  declared  Plumer,  ^'but  preserve 
the  faith  of  the  nation. ' '  He  then  pointed  out  that  cases  might 
arise  respecting  the  rights  of  individuals  under  the  treaty  in  the 
courts  of  law  in  which  the  constitutionality  of  the  treaty  might 
be  questioned.  He  could  even  conceive  of  cases  in  which  it  might 
become  the  duty  of  the  judges,  if  such  were  their  opinion,  and 
if  the  nature  of  the  case  required  it,  to  declare  the  treaty  to  be 
repugnant  to  the  Constitution.^^ 


2i  Annals  of  Congress,  8  Cong.,  1  Sess.  (1803-1804),  73. 

25  Plumer,  ''Memorandum,  1803-1804,"  under  date  of  Thursday,  Novem- 
ber 3,  1803  (p.  72).  A  briefer  reference  to  his  vote  will  be  found  in  his 
letter  to  Daniel  Plumer,  November  15,  1803,  in  his  MSS  letters,  and  in 
Plumer,  Life  of  William  Plumer,  265. 


The  Treaty-Making  Power  61 

Coming  as  it  did  only  a  few  months  after  the  decision  of  the 
Supreme  Court  in  the  case  of  Marhury  vs.  Madison  (February, 
1803),  Plumer's  last  statement  is  very  striking.  In  Marhury 
vs.  Madison  the  Supreme  Court  of  the  United  States,  for  the 
first  time,  had  declared  a  law  to  be  unconstitutional.  Plumer's 
assertion  that  the  judges  had  the  power  ^'to  declare  a  treaty 
repugnant  to  the  Constitution  "  is  in  harmony  with  that  decision. 
Plumer  does  not  say  whether  he  had  been  influenced  by  the 
opinion  of  the  Supreme  Court  or  whether  he  had  reached  his 
conclusion  independently.  In  either  case,  his  statement  is  an 
interesting  illustration  of  the  development  of  constitutional 
interpretation. 

The  extent  of  the  treaty-making  power  was,  like  practically 
all  the  other  constitutional  issues  to  which  the  Louisiana  Pur- 
chase gave  rise,  one  of  interpretation.  To  a  great  degree  it  has 
remained  so,  yet  precedent  has  added  much  to  interpretation. 
Just  as  the  decision  at  the  time  of  the  Jay  Treaty  was  made 
use  of  in  the  debates  on  the  Louisiana  Treaty,  so  the  latter  has 
been  cited  each  time  the  same  question  has  recurred.  That 
sectional  interests  have  entered  into  these  interpretations  is  of 
none  the  less  interest  and  importance;  for  it  goes  to  show  how 
men  sought,  under  the  Constitution,  a  justification  of  their  acts 
and  votes. 


CHAPTER  V 
THE  DEBATE  ON  THE  TREATY 

(1)   The  Bight  to  Acquire  Territory 

The  right  of  the  Government  under  the  Constitution  to 
acquire  new  territory  did  not,  in  itself,  cause  much  debate  in 
Congress  when  the  Louisiana  treaty  was  under  discussion.  This 
right,  although  generally  complicated  with  some  of  the  other 
points  at  issue,  nevertheless,  in  some  of  its  phases  at  least,  stands 
apart.  The  doctrine  that  a  republic  ought  not  to  cover  too 
extensive  an  area  was  early  introduced,  as  it  had  been  during 
the  days  when  the  ratification  of  the  Constitution  itself  was 
before  the  country.^  This  doctrine  John  Breckinridge  of  Ken- 
tucky, in  the  Senate,  pronounced  old  and  hackneyed.  He,  too, 
asked  whether  the  principle  would  have  been  violated  by  includ- 
ing the  island  of  Orleans  and  the  Floridas.  Since  all  parties 
seemed  to  think  their  acquisition  essential,  why  not  acquire  on 
the  west  bank  of  the  Mississippi  as  well  as  the  east  side  ?  Instead 
of  believing  in  the  theory  that  a  republic  ought  to  be  confined 
within  narrow  limits,  he  believed  that  the  more  extensive  its 
dominion  the  more  durable  it  would  be.^ 


1  Federalist  (Ford,  ed.),  nos.  9,  10,  14.  After  the  triumph  of  democracy 
in  1801,  Jefferson  wrote  to  Nathaniel  Niles:  *'It  furnishes  a  new  proof 
of  the  falsehood  of  Montesquieu 's  doctrine,  that  a  republic  can  be  preserved 
only  in  a  small  territory.  The  reverse  is  the  truth.  Had  our  territory  been 
even  a  third  only  of  what  it  is,  we  were  gone.  But  when  frenzy  &  delusion, 
like  an  epidemic,  gained  certain  parts,  the  residue  remained  sound  &  un- 
touched, and  held  on  till  their  brethren  could  recover  from  the  temporary 
delusion ;  and  that  circumstance  has  given  me  great  comfort. ' '  Jefferson, 
Writings  (Ford,  ed.),  VIII,  24.  Quoted  by  Ford  in  his  edition  of  the 
Federalist,  50,  footnote. 

^Annals  of  Congress,  8  Cong.,  1  Sess.   (1803-1804),  60. 

The  same  idea  crept  into  the  printed  pamphlets  of  the  time,  where 
supporters  of  the  administration  defended  the  extension  of  the  Federal 
limits.  See  for  example,  David  A.  Leonard,  An  Oration . . .  on  the  late 
acquisition  of  Louisiana 1804,  20;   David  Eamsay,  An  Oration  on  the 


The  Bight  to  Acquire  Territory  63 

Upon  the  question  of  the  right  to  acquire  territory,  Randolph 
of  Virginia  stood,  in  the  House,  as  the  champion  of  broad  con- 
struction of  the  Constitution.  He  held  that  if,  by  the  Consti- 
tution, the  United  States  was  restricted  to  the  limits  which 
existed  at  the  time  of  its  adoption,  those  limits  must  have  been 
accurately  defined  and  generally  known  at  the  time.  The 
boundaries  had  been  neither  particularly  described  nor  settled 
beyond  dispute.  They  were  unsettled  on  the  northwestern, 
southern,  and  northeastern  frontiers  when  the  Constitution  was 
adopted. 

It  will  not  be  denied,  [said  Randolph]  that,  among  the  powers  which 
the  Government  possesses  under  the  Constitution,  there  exists  that  of  set- 
tling disputes  concerning  our  limits  with  the  neighboring  nations The 

existence  of  this  power  will  not  be  denied:  it  has  been  exercised  in  ascer- 
taining our  northeastern  and  southern  frontier,  and  it  involves  in  it  the 
power  of  extending  the  limits  of  the  Confederacy. . . .  That  the  Constitution 
should  tie  us  down  to  particular  limits,  without  expressing  those  limits; 
that  wc  should  be  restrained  to  the  then  boundaries  of  the  United  States, 
when  it  is  in  proof . . .  that  no  such  bounds  existed,  or  do  now  exist,  was 
altogether  uncomprehensible  and  inadmissible.3 

Elliott  of  Vermont  declared  that  the  treaty-making  power  had 
been  constituted  by  the  American  people  with  an  eye  to  the  law 
of  nations;  and  that  by  virtue  of  this  law,  the  Government  and 
the  people  of  the  United  States  possessed  the  power  and  right 
of  acquiring  territory  by  conquest,  cession,  or  purchase.* 

Nicholson  of  Maryland  traced  historically  the  right  of  the 
United  States  to  acquire  territory.  When,  in  1776,  allegiance 
was  absolved  from  Great  Britain,  each  state  became  a  separate 
and  independent  sovereignty.     Included  among  the  rights  of 

Cession  of  Louisiana  to  the  United  States . . .  1804,  19 ;  Allan  B.  Magruder, 
Political,  Commercial  and  Moral  Eeflections,  on  the  late  cession  of  Louisiana 
to  the  United  States,  73;  John  B.  Colvin,  Eepuhlican  Policy,  etc.,  1802; 
Sylvestris  (pseud.),  Beflectioiis  on  the  Cession  of  Louisiana  to  the  United 
States. 

s  Annals  of  Congress,  8  Cong.,  1  Sess.   (1803-1804),  434-435. 
*IMd.,  447-448. 


64         Constitutimial  History  of  the  Louisiana  Purchase 

each  state  was  that  of  extending  its  limits,  either  by  conquest 
or  by  purchase.  In  1781,  under  the  Articles  of  Confederation 
each  state  surrendered  a  portion  of  its  sovereignty  for  the  com- 
mon benefit  of  the  whole.  Among  the  rights  surrendered  was 
that  of  acquiring  new  territory,  with  the  powers  of  peace  and 
war.  Again  in  1788,  the  states  resumed  their  original  inde- 
pendence. The  present  Constitution  w^as  adopted,  giving  the 
right  to  declare  war  to  Congress  and  the  right  to  make  treaties 
to  the  President  and  Senate.  These  were  the  means  of  acquiring 
territory.^ 

Nicholson's  argument  is  interesting  as  an  early  application 
of  the  doctrine  that  the  states  did  possess,  at  one  time  or  other, 
complete  sovereign  powers,  some  of  which  were  given  up  to  the 
General  Government. 

The  widest  sweep  of  authority  was  claimed  for  the  Govern- 
ment by  Rodney  of  Delaware,  who  held  that  unless  special 
restriction  of  the  Constitution  forbade  it,  there  was  no  reason 
why  the  power  of  acquiring  territory  could  not  come  under  the 
clause  providing  for  the  general  welfare  and  common  defense. 
The  territory  of  the  United  States  might  also  be  extended 
through  war,  and  by  the  treaty-making  power.  Furthermore, 
added  Rodney,  since  Congress  had  the  right  to  purchase  terri- 
tory from  a  state  for  a  capital,  forts,  arsenals,  public  buildings, 
etc.,  it  must  possess  the  power  to  purchase  territory  from  a 
foreign  state.^  The  claims  to  power  made  here  were  too  broad 
even  for  the  supporters  of  the  treaty. 

Mitchill  of  New  York  did  not  believe  the  framers  of  the 
Constitution  intended  to  prevent  the  United  States  from  acquir- 
ing territory.  Such  a  restriction  would  have  been  contrary  to 
the  powers  inherent  in  independent  nations.  Moreover,  lands 
had  been  frequently  obtained  by  treaty  and  purchase  from  the 


5  IMd.,  468. 
GlUd.,  472-473. 


The  Right  to  Acquire  Territory  65 

Indians  who  were  as  much  aliens  as  other  foreign  nations,  and 
the  question  of  the  constitutionality  of  such  acquisitions  had 
never  been  raised.  He  declared  his  understanding  revolted  at  a 
doctrine  which  held  that  there  was  no  constitutional  power  to 
purchase  and  possess  waste  lands  across  the  Mississippi  to  which 
the  American  people  could  spread  when  the  eastern  side  had 
become  overpopulated/ 

Thus  it  will  be  seen  that  the  great  difference  of  opinion  was 
not  over  the  right  to  acquire  territory,  but  over  the  means  by 
which  this  could  be  done. 


(2)  Status  of  the  Acquired  Territory 

The  third  article  of  the  treaty  with  France  for  the  cession 
of  Louisiana  to  the  United  States  provided  that : 

The  inhabitants  of  the  ceded  territory  shall  be  incorporated  in  the 
Union  of  the  United  States,  and  admitted  as  soon  as  possible,  according 
to  the  principles  of  the  Federal  Constitution,  to  the  enjoyment  of  the  rights, 
advantages  and  immunities  of  citizens  of  the  United  States;  and  in  the 
meantime  they  shall  be  maintained  and  protected  in  the  free  enjoyment 
of  their  liberty,  property,  and  the  religion  which  they  profess. 

This  article  caused  the  principal  struggle  over  constitutional 
interpretation  aroused  by  the  treaty.  Whether  the  treaty- 
making  power  could  guarantee  such  rights  as  were  here  laid 
down  has  alread}^  been  discussed.^  The  right  under  the  Con- 
stitution to  incorporate  into  the  Union  the  new  territory,  or 
any  new  territory,  was  questioned  by  opponents  of  the  treaty. 
The  wording  of  the  article  itself  called  for  interpretation.  Just 
what  was  meant  by  the  term  ^'incorporated  in  the  Union  of  the 
United  States"?  What  obligation  was  involved  in  the  stipula- 
tion ''as  soon  as  possible"?     What  rights  did  the  inhabitants 


7  Ibid.,  477-479. 

8  See  above. 


66         Constitutional  History  of  the  Louisiana  Purchase 

have  in  the  interval  between  acquisition  and  statehood,  allowing 
that  ultimate  statehood  was  to  be  the  goal  for  Louisiana — which 
some  vehemently  denied? 

The  policy  of  the  Government  was  of  the  greatest  significance 
because  of  the  precedents  laid  down,  precedents  cited  in  connec- 
tion with  every  new  acquisition  of  territory  by  the  United 
States;  and  here  again  special  attention  must  be  called  to  the 
recent  Insular  Cases,  where  the  arguments  used  in  connection 
with  the  Louisiana  purchase  were  gone  over  in  detail.^ 

Some  light  is  thrown  on  the  intentions  of  the  Jefferson 
Administration  regarding  the  rights  of  the  inhabitants  of  the 
acquired  territory  by  an  examination  of  the  outline  of  the  treaty 
drawn  up  by  Madison  for  the  guidance  of  Livingston  and  Mon- 
roe, dated  March  2,  1803.  Although  this  plan  of  a  treaty  was 
made  with  an  eye  to  the  purchase  of  the  territory  on  the  east 
side  of  the  Mississippi  only,  yet  the  attitude  towards  the  inhab- 
itants was  the  same  as  if  the  purchase  of  Louisiana  had  been 
included.    Article  seven  of  the  outlined  treaty  reads  as  follows : 

To  incorporate  the  inhabitants  of  the  hereby  ceded  territory  with  the 
citizens  of  the  United  States  on  an  equal  footing,  being  a  provision  which 
cannot  now  be  made,  it  is  to  be  expected,  from  the  character  and  policy 
of  the  United  States,  that  such  incorporation  will  take  place  without 
unnecessary  delay.  In  the  meantime  they  shall  be  secure  in  their  persons 
and  property,  and  in  the  free  enjoyment  of  their  religion.io 

Madison  wrote  in  his  instructions,  March  2,  1803 : 

This  article  is  suggested  by  the  respect  due  to  the  rights  of  the  people 
inhabiting  the  ceded  territory,  and  by  the  delay  which  may  be  found  in 
constituting  them  a  regular  and  integral  portion  of  the  union.  A  full 
respect  for  their  rights  might  require  their  consent  to  the  act  of  cession; 
and  if  the  French  Government  should  be  disposed  to  concur  in  any  proper 


9  See  Insular  Cases,  passim.  Also  Charles  E.  Magoon,  Report  on  the 
Legal  Status  of  the  Territory  and  InTiaMtants  of  the  Islands  acquired  by 
the  United  States  during  the  War  with  Spain,  Washington,  1900. 

^0  Annals  of  Congress,  7  Cong.,  2  sess.  (1802-1803),  Appendix,  1101; 
American  State  Papers,  Foreign  Relations,  II,  542. 


StatK^  of  the  Acquired  Territory  67. 

mode  of  obtaining  it,  the  provision  would  be  honorable  to  both  nations. 
There  is  no  doubt  that  the  inhabitants  would  readily  agree  to  the  proposed 
transfer  of  their  allegiance.n 

An  undated  manuscript  abstract  of  the  terms  of  the  treaty 
with  France  contained,  as  article  three,  the  following  provision: 

All  the  rights  which  it  is  usual  to  reserve  to  the  inhabitants  of  a  ceded 
territory  or  country,  are  reserved  in  a  manner  the  most  ample  possible  to 
those  of  Louisiana,  as  well  in  the  exercise  of  their  religion  as  to  retire 
wheresoever  they  please,  to  sell  their  lands  and  other  property  or  transport 
their  effects  and  persons  without  impediment  of  any  [sort?]  under  any 
pretext  whatever,  except  for  debts  or  criminal  offenses.  The  [term?]  fixed 
for  the  said  sale  and  removal  or  retreat  shall  be  that  of  two  years  to 
commence  from  the  day  of  the  exch[an]ge  of  the  ratification  of  the  present 
treaty.i2 

Article  three  of  the  treaty  as  finally  ratified  contains  an 
express  stipulation  that  ''The  inhabitants  of  the  ceded  territory 
shall  be  incorporated  in  the  Union,  and  admitted  as  soon  as 
possible,  according  to  the  principles  of  the  Federal  Constitution, 
to  the  enjoyment  of  all  the  rights,  advantages  and  immunities 
of  citizens  of  the  United  States."  How  much  of  an  obligation 
did  this  imply  ?  There  were  various  answers  to  this  question. 
One  was  that  of  John  Taylor,  who,  speaking  in  the  Senate, 
denied  that  the  third  article  of  the  treaty  stipulated  that  Louis- 
iana must  be  erected  into  a  state : 

It  is  conceded  that  the  treaty-making  power  cannot,  by  treaty,  erect  a 
new  State,  however  they  may  stipulate  for  it. . . .  It  has  been  proved  that 
the  United  States  may  acquire  territory.  Territory,  so  acquired,  becomes 
from  the  acquisition  itself  a  portion  of  the  territories  of  the  United  States, 
or  may  be  united  with  their  territories  without  being  erected  into  a  State. 
An  union  of  territory  is  one  thing;  of  States,  another.  . . .  The  United  States 
possesses  territory,  comprised  in  the  union  of  territory,  and  not  in  the 
union  of  States.     Congress  is  empowered  to  regulate  or  dispose  of  State 


11  Monroe    Papers,    ''Writings    to    Monroe,"    IX,    November    9,    1800- 
September,  1803;  American  State  Papers,  Foreign  Eelations,  II,  543. 

12  Monroe   Papers,    ' '  Writings    of   Monroe, ' '    II,    December    17,    1803- 
December  16,  1804. 


68         Constitutional  History  of  the  Louisiana  Purchase 

sections  of  the  Union.  The  citizens  of  these  territorial  sections  are  citizens 
of  the  United  States,  and  they  have  all  the  rights  of  citizens  of  the  United 
States;  but  such  rights  do  not  include  those  political  rights  arising  from 
State  compacts  or  governments,  which  are  dissimilar  in  different  States. 
Supposing  the  General  Government  or  treaty-making  power  have  no  right 
to  add  or  unite  States  and  State  citizens  to  the  Union,  yet  they  have  a 
power  of  adding  or  uniting  to  it  territory  and  territorial  citizens  of  the 

United  States 

The  third  article  declares  that  'the  inhabitants  of  the  ceded  territory 
shall  be  incorporated  in  the  Union  of  the  United  States.'  And  these  words 
are  said  to  require  the  territory  to  be  erected  into  a  State.  This  they  do 
not  express,  and  the  words  are  literally  satisfied  by  incorporating  them 
into  the  Union  as  a  territory,  and  not  as  a  State.  The  Constitution  recog- 
nizes and  the  practice  warrants  an  incorporation  of  a  Territory  and  its 
inhabitants  into  the  Union  as  a  territory,  without  admitting  either  as  a 

State For  if  the  words  *  the  inhabitants  of  the  ceded  territory  shall  be 

incorporated  in  the  Union  of  the  United  States'  intended  that  Louisiana 
and  its  inhabitants  should  become  a  State  in  the  Union  of  States,  there 
exists  no  reason  for  proceeding  to  stipulate  that  these  same  inhabitants 
should  be  made  'citizens  as  soon  as  possible,  according  to  the  principles  of 
the  Federal  Constitution. '  Their  admission  into  the  Union  of  the  States 
would  have  made  them  citizens  of  the  United  States. ...  If  my  construction 
is  correct,  all  objections  to  the  treaty  and  to  this  bill  for  fulfilling  it,  on 
the  ground  of  unconstitutionality,  are  unfounded.  The  three  distinct 
members  of  the  third  article  will  be  each  separately  and  distinctly  com- 
plied with;  first,  by  an  incorporation  of  the  territory  and  its  inhabitants 
in  the  Union,  as  a  Territory.  Secondly,  by  admitting  them  to  all  the 
rights  of  citizens  of  the  United  States — under  some  uniform  rule  of 
naturalization;  and  thirdly,  by  protecting  their  liberty,  property,  and 
religion,  by  'rules  and  regulations,'  to  be,  'in  the  meantime,'  enacted  by 
Congress,  under  a  Constitutional  power  extending  to  Territories,  but  not 
to  States.13 

Taylor's  interpretation  was  not  acceptable  to  the  opponents 
of  the  treaty  of  whom  Tracy  of  Connecticut  was  a  typical  rep- 
resentative. Tracy  held  the  meaning  of  the  third  article  of  the 
treaty  to  be  that  the  inhabitants  of  Louisiana  were  incorporated 
by  it  into  the  Union  on  an  equality  with  the  territorial  govern- 

15  Annals  of  Congress,  8  Cong.,  1  Sess.  (1803-1804),  50-52.  Taylor's 
distinction  between  state  and  federal  citizenship  is  a  forerunner  of  the 
lengthy  discussion  of  this  point  in  the  Dred  Scott  case,  and  more  recently 
in  the  Insular  Cases. 


status  of  the  Acquired  Territory  69 

ments  already  existing,  and  similarly,  this  territory  when  the 
population  had  increased  sufficiently,  could  be  admitted  as  a 
state,  with  the  same  rights  as  the  other  states.  He  questioned 
the  power  of  the  President  and  Senate  to  guarantee  this. 
Although  it  was  true  that  the  Constitution  provided  for  the 
admission  of  new  states  by  Congress,  Tracy  declared  that  the 
President  and  Senate  alone  could  not  admit  Louisiana.  Further- 
more, even  Congress  could  not  admit  new  ''foreign"  states  into 
the  Union  without  the  consent  of  the  old  partners. 

The  compact  theory,  so  often  the  weapon  of  the  party  of 
ojpposition  in  the  United  States,  was  now  pushed  to  the  front 
and  along  with  it  came  the  reasons  for  much  of  the  New 
England  opposition  to  the  treaty.  The  article  of  the  Constitu- 
tion alluded  to,  Tracy  argued,  referred  only  to  ''domestic" 
states.  It  was  "unreasonable  to  suppose  that  Congress  should, 
by  a  majority  only,  admit  new  foreign  States,  and  swallow  up 
by  it,  the  old  partners,  when  two-thirds  of  all  the  members  are 
made  requisite  for  the  least  alteration  in  the  constitution. ' '  The 
principles  of  the  Government,  the  rights  of  the  partners  to  the 
compact,  forbade  a  measure  which  would  introduce  a  large  for- 
eign element  into  the  Union.  This  could  only  be  done  by  the 
consent  of  all  the  partners.  The  reason  for  such  an  interpre- 
tation comes  out  in  Tracy's  frank  statement  that  "the  relative 
strength  which  this  admission  gives  to  a  Southern  and  West- 
ern interest,  is  contradictory  to  the  principles  of  our  original 
Union.  "1* 

Breckinridge  denied  the  charges  of  unconstitutionality 
against  the  third  article  of  the  treaty.  Opponents  of  the  treaty, 
he  pointed  out,  had  gone  so  far  as  to  advocate  the  seizure  of  a 
part  of  the  country  under  question.  Where  was  the  constitu- 
tional distinction  between  acquisition  by  conquest  and  purchase 


^^Ibid.,  54-56. 


70         Constitutional  History  of  the  Louisiana  Purchase 

through  a  treaty  ?  An  amendment  could  be  made  to  the  Consti- 
tution to  avoid  all  difficulty.  Answering  Tracy,  Breckinridge 
said  : 

[The]  gentleman  from  Connecticut  admits  that  Congress  may  acquire 
territory  and  hold  it  as  a  territory,  but  cannot  incorporate  it  into  the 
Union.  By  this  construction  he  admits  the  power  to  acquire  territory,  a 
modification  infinitely  more  dangerous  than  the  unconditional  admission  of 
a  new  State;  for  by  his  construction,  territories  and  citizens  are  considered 
and  held  as  the  property  of  the  United  States,  and  may  consequently  be 
used  as  dangerous  engines  in  the  hand  of  the  Government  against  the 
States  and  people As  to  the  admission  of  new  States  the  same  gentle- 
man observes  that  Congress  may  admit  new  States,  the  President  and 
Senate  who  are  but  a  component  part,  cannot.  Apply  this  doctrine  to  the 
case  before  us.  How  can  Congress  by  any  mode  of  legislation  admit  this 
country  into  the  Union  until  it  is  acquired?  And  how  can  this  acquisition 
be  made  except  through  the  treaty -making  power?  Could  the  gentleman 
rise  in  his  place  and  move  for  leave  to  bring  in  a  bill  for  the  purchase 
of  Louisiana  and  its  admission  into  the  Union. ,  I  take  it  that  no  trans- 
action of  this  or  any  kind  with  a  foreign  Power  can  take  place  except 
through  the  Executive  Department,  and  that  in  the  form  of  a  treaty, 
agreement,  or  convention.  When  the  acquisition  is  made.  Congress  can 
then  make  such  disposition  of  it  as  may  be  expedient.is 

New  England  scruples  were  not  yet  overcome  and  Thacher 
of  Massachusetts  denied,  as  Tracy  had  done,  the  right  to  admit 
a  new  member  into  the  partnership  of  states  without  the  consent 
of  all  the  partners:  most  assuredly,  the  President  and  Senate 
had  no  such  power.^^ 

Smilie  of  Pennsylvania  considered  the  right  of  annexing 
territory  to  be  incidental  to  all  Governments.  In  the  United 
States  this  right  must  reside  in  the  General  Government,  because 
the  states  were  expressly  forbidden  to  form  treaties  or  make  war. 
Taking  up  the  matter  of  the  third  article,  Smilie  said  that  if  the 
principles   of  the   Constitution   forbade   the   admission   of   the 


-i-^  Annals  of  Congress,  8  Cong.,  1  Sess.  (1803-1804),  60-63.  Just  how 
Breckinridge  would  have  stood  on  the  action  taken  by  Congress  in  relation 
to  Texas  is  an  interesting  topic  for  conjecture. 

iQlhid.,  454-455. 


Statiis  of  the  Acquired  Territory  71 

inhabitants  of  Louisiana  into  the  Union,  there  was  no  obligation 
to  admit  them.  In  this  case  the  remedy  would  be  an  amendment 
of  the  Constitution  authorizing  the  admission.  If  the  people 
of  the  United  States  did  not  choose  to  pass  such  an  amendment, 
the  inhabitants  of  the  territory  could  remain  in  a  colonial 
state." 

Roger  Griswold  interpreted  the  third  article  to  mean  either 
that  the  inhabitants  of  the  ceded  territory  were  to  be  incorpo- 
rated into  the  Union,  by  the  treaty  itself,  or  that  the  faith  of 
the  nation  was  pledged  that  this. would  be  done  within  a  reason- 
able time.  He  denied  the  right  of  the  President  and  Senate 
to  add  new  members  to  the  Union  by  treaty,  and,  like  other 
opponents,  he  declared  that  the  consent  of  all  the  parties  to 
the  compact  was  necessary  for  the  admission  of  a  new  partner. 

The  Government  of  this  country  is  formed  by  a  union  of  States,  and 
the  people  have  declared,  that  the  Constitution  was  established  *to  form  a 
more  perfect  union  of  the  United  States.'  The  United  States  here  cannot 
be  mistaken.  They  were  the  States  then  in  existence,  and  such  other  new 
States  as  should  be  formed,  within  the  limits  of  the  Union,  conformably 
to  the  provisions  of  the  Constitution.is 

The  bringing  in  of  a  foreign  nation,  continued  Griswold,  would 
destroy  the  ' '  perfect  union  of  the  States  "  :  a  treaty  so  stipulating 
was  void. 

Taking  up  another  line  of  attack,  Griswold  argued  that  a 
promise  to  incorporate  was  the  same  in  principle  as  incorpora- 
tion. If  no  incorporation  of  new  territory  could  take  place 
without  an  amendment  to  the  Constitution,  he  denied  the  right 
of  the  treaty-making  power  to  stipulate  for  such  an  amendment. 
Stipulations  which  created  an  obligation  were  void.  Admitting 
that  new  territory  and  new  subjects  could  undoubtedly  be 
obtained  by  conquest  and  by  purchase,  Griswold  maintained  that 


Cases. 


17  IMd.,  457-458. 

18  Compare  the  argument  in  the  Dred  Scott  Decision  and  in  the  Insular 


72         Constitutional  History  of  the  Louisiana  Purchase 

they  must  remain  in  the  condition  of  colonies,  and  be  governed 
as  such.  ''The  objection  to  the  third  article  is  not  that  the 
province  of  Louisiana  could  not  have  been  purchased,  but 
neither  this  nor  any  other  foreign  nation,  can  be  incorporated 
into  the  Union  by  treaty  or  by  law."^'' 

Griswold's  interpretation,  if  followed,  would  have  altered 
greatly  the  history  of  the  United  States.  The  policy  adopted 
by  the  Government  with  regard  to  the  steps  by  which  the  people 
of  the  territories  have  been  prepared  for  statehood  was  laid 
down  by  Mitchill  of  New  York  in  so  clear  a  fashion  that  it  seems 
justifiable  to  follow  him  at  some  length. 

According  to  Mitchill,  the  inhabitants  of  the  ceded  territory 
were  to  have  the  choice  of  staying'  or  leaving.  If  they  chose  to 
remain  they  were  to  be  maintained  and  protected  in  the  enjoy- 
ment of  liberty,  property  and  religion.  They  were  to  be  trained 
in  a  knowledge  of  American  laws  and  institutions.     And  so : 

They  are  thus  to  serve  an  apprenticeship  to  liberty;  they  are  thus  to  be 
taught  the  lessons  of  freedom;  and  by  degrees  they  are  to  be  raised  to  the 
enjoyment  and  practice  of  independence.  All  this  is  to  be  done  as  soon 
as  possible;   that  is,  as  soon  as  the  nature  of  the  case  will  permit;   and 

according  to  the  principles  of  the  Federal  Constitution Secondly,  after 

they  shall  have  a  sufficient  length  of  time  in  this  probationary  condition, 
they  shall,  as  soon  as  the  principles  of  the  Constitution  permit,  and  con- 
formably thereto,  be  declared  citizens  of  the  United  States.  Congress 
will  judge  the  time,  manner,  and  expediency  of  this.  The  act  we  are  now 
about  to  perform  will  not  confer  on  them  this  elevated  character. ...  By 
degrees,  however,  they  will  pass  on  from  the  childhood  of  republicanism 
through  the  improving  period  of  youth,  and  arrive  at  the  mature  experience 
of  manhood.  And  then,  they  may  be  admitted  to  the  full  privileges  which 
their  merit  and  station  will  entitle  them  to.  At  that  time  a  general  law 
of  naturalization  may  be  passed.  For  I  do  not  venture  to  afflrm  tlmt,  by 
the  mere  act  of  cession,  the  inhabitants  of  a  ceded  country,  become,  of 
course,  citizens  of  the  country  to  which  they  are  annexed.  It  would  seem 
not  to  be  the  case,  unless  specially  provided  for.^o 


19  Annals  of  Congress,  8  Cong.,  1  Sess.  (1803-1804),  460-463. 

20  Italics  mine. 


status  of  the  Acquired  Territory  73 

Mitchill  cited  the  treaty  of  1794  with  Great  Britain  as  a 
precedent  that,  without  an  act  of  Congress,  aliens  could  be  con- 
verted into  citizens  by  the  provisions  of  a  treaty  duly  ratified  by 
the  President  and  Senate.  By  the  second  article  of  that  treaty 
it  was  stipulated  that  all  British  subjects  continuing  within  the 
evacuated  posts  and  precincts  longer  than  a  year,  should  be  con- 
sidered to  have  abandoned  allegiance  to  the  British  Crown,  and 
to  have  elected  to  become  American  citizens.  By  taking  the  oath 
of  allegiance,  they  became  at  once,  by  act  of  treaty,  citizens  of 
the  United  States.  In  the  Louisiana  treaty  the  power  of  making 
citizens  had  not  been  exercised  by  the  President  and  Senate 
but  was  left  to  Congress  at  some  future  day.^^ 

John  Randolph  argued  that  a  stipulation  to  incorporate  the 
ceded  territory  did  not  imply  that  the  inhabitants  must  ever 
be  admitted  to  the  unqualified  enjoyment  of  the  privileges  of 
citizenship.  It  did  not  mean  that  they  must  be  brought  into  the 
Union  on  an  equal  footing  with  the  people  of  the  original  states, 
or  with  those  created  under  the  Constitution.  It  merely  ex- 
tended to  them  the  rights  and  immunities  of  citizens, 

being  those  rights  and  immunities  of  jury-trial,  liberty  of  conscience,  etc., 
which  every  citizen  may  challenge,  whether  he  be  a  citizen  of  an  individual 
State,  or  of  a  territory  subordinate  to  and  dependent  on  those  States  in 
their  corporate  capacity.  In  the  meantime  they  are  to  be  protected  in  the 
enjoyment  of  their  existing  rights.  There  is  no  stipulation,  however,  that 
they  shall  ever  be  formed  into  one  or  more  States.22 

The  validity  of  Randolph's  argument  has  divided  political 
thinkers  of  the  United  States  to  the  present  day.  One  group, 
of  whom  Randolph  is  an  early  exponent,  holds  that  although 
the  Constitution  grants  to  Congress  the  power  of  legislating  for 
the  territories,  yet  legislation  by  Congress  is  not  necessary  for 
the  extension  to  the  inhabitants  of  the  territories  of  certain  civil 


21  Annals  of  Congress,  8  Cong.,  1  Sess.  (1803-1804),  480-481. 

22  ihid.,  487. 


74         Constitutional  History  of  the  Louisimiu  Purchase 

rights,  such  as  those  enumerated  by  Randolph.  Such  rights,  it 
is  claimed,  are  extended  to  the  territories  by  the  Constitution, 
ex  proprio  vigore. 

The  opposing  school  maintains  that  Congressional  legislation 
is  necessary  in  all  cases,  no  exceptions  whatever  being  made. 

Just  what  action  was  taken  with  regard  to  the  inhabitants  of 
Louisiana  will  be  narrated  later. 

(3)   Commercial  Privileges  Under  the  Treaty 

Another  question  which  aroused  the  keenest  controversy  at 
the  time  and  which  left  its  legacy  of  constitutional  difficulties 
for  many  years  afterwards  was  that  of  an  alleged  preference 
given  by  article  seven  of  the  treaty  to  ports  of  the  newly  acquired 
territor^^  over  the  other  ports  of  the  United  States.  Article 
seven  provided  'Hhat  the  French  ships  coming  directly  from 
France  or  any  of  her  colonies,  loaded  with  the  produce  and 
manufactures  of  France  or  her  said  colonies,"  and  the  ships  of 
Spain  in  similar  fashion, 

should  be  admitted  during  the  space  of  twelve  j^ears  in  the  port  of  New 
Orleans,  and  in  all  other  legal  ports  of  entry  within  the  ceded  territory,  in 
the  same  manner  as  the  ships  of  the  United  States  coming  directly  from 
France  or  Spain,  or  any  of  their  colonies,  without  being  subject  to  any 
other  or  greater  duty  on  merchandize,  or  other  or  greater  tonnage  than  that 
paid  by  the  citizens  of  the  United  States. 

During  this  perid  no  other  nation  was  to  have  the  same  privi- 
leges in  the  ports  mentioned.  This  provision  pertained  to 
importations  into  Louisiana  and  was  not  to  affect  regulations 
of  the  United  States  concerning  the  exportation  of  the  produce 
and  merchandise  of  the  United  States.  Article  eight  was  really 
a  supplement  of  the  above,  stipulating  that,  ''In  future  and 
forever  after  the  expiration  of  the  twelve  years,  the  ships  of 
France  shall  be  treated  upon  the  footing  of  the  most  favored 
nations  in  the  ports  above  mentioned." 


Commercial  Privileges  75 

Aside  from  the  grant  of  commercial  privileges  to  France  and 
Spain,  which  New  England  ship  owners  opposed,  did  article 
seven  of  the  treaty  violate  the  provision  in  the  Constitution 
that,  ''No  preference  shall  be  given  by  any  Regulation  of 
Commerce  or  Revenue  to  the  Port  of  one  State  over  those  of 
another "r^  Opponents  of  the  treaty  held  that  it  did,  while 
those  who  favored  the  treaty  declared  that  this  provision  of  the 
Constitution  was  for  states  only  and  that  Congress  might  legis- 
late as  it  chose  for  the  territories.  Senator  Tracy  of  Connecticut 
said  that  a  commercial  preference  to  the  ports  of  the  ceded  terri- 
tory over  the  other  ports  of  the  United  States  was  hereby  granted 
because  a  duty  of  forty-four  cents  on  tonnage  was  paid  by  all 
foreign  ships  or  vessels  in  all  the  ports  of  the  United  States. 
He  conceded,  however,  that  if  Louisiana  were  not  admitted  into 
the  Union  and  if  no  promise  to  admit  her  existed,  then  his  argu- 
ment did  not  apply.^* 

The  difference  between  state  and  territory  is  here  recognized, 
a  distinction  which  formed  the  basis  of  the  controversy. 

John  Quincy  Adams  claimed  that  the  seventh  article  contained 
engagements  which  he  thought  would  necessitate  an  amendment 
or  an  addition  to  the  Constitution. ^^ 

In  the  House  of  Representatives  the  seventh  article  of  the 
treaty  caused  much  more  contention  than  it  had  in  the  Senate. 
Gaylord  Griswold  of  New  York  maintained  that  a  violation  of 
the  ninth  section  of  article  one  of  the  Constitution  would  result 
if  the  newly  ceded  territory  should  ever  become  incorporated 
with  the  United  States,  because  there  would  then  be  ports  of 
entry  in  the  United  States  into  which  French  and  Spanish  ships 
might  enter  on  terms  different  from  those  on  which  they  could 
enter  other  ports  of  the  United  States.^^     The  same  view  was 


23  Article  I,  section  9,  clause  6, 

2^  Annals  of  Congress,  8  Cong.,  1  Sess.  (1803-1804),  57. 

25lMd.,  67. 

26  IMd.,  434. 


76         Constitutional  History  of  the  Louisiana  Purchase 

held  by  Joseph  Lewis  of  Virginia. ^^  Kandolph  introduced  a 
novel  interpretation  in  his  denial  of  the  unconstitutionality  of 
the  seventh  article  on  the  ground  that  the  privilege  given  French 
and  Spanish  vessels  was  a  part  of  the  price  of  the  territory.^^ 
Just  how  this  satisfied  the  constitutional  requirements  of  the  case 
did  not  appear  clear  to  many  and  Randolph's  arguments  were 
questioned.  Thacher  of  Massachusetts,  for  instance,  asked  how 
the  preference  could  be  considered  a  part  of  the  purchase  price 
when  it  applied  to  Spain  as  well  as  France.^^ 

To  the  alleged  unconstitutionality  of  the  article  in  question 
on  the  ground  that  it  violated  the  ninth  section  of  the  first  article 
of  the  Constitution,  Griffin  of  Virginia  added  another  objec- 
tion. He  deemed  the  seventh  article  of  the  treaty  a  commercial 
regulation.  Therefore,  since  to  Congress  had  been  given,  by  the 
eighth  section  of  article  one  of  the  Constitution,  power  to  regu- 
late commerce  with  foreign  nations,  the  treaty  stipulation  made 
by  the  President  and  Senate  was  a  contravention  of  this  consti- 
tutional investiture  of  Congress.  The  President  and  Senate, 
in  their  executive  capacity,  had  legislated,  and  by  so  doing,  had 
infringed  upon  the  rights  of  the  House.^*' 

Elliott  of  Vermont  in  defending  the  seventh  article  reiterated 
the  statement  of  others  that  the  provision  of  the  Constitution 
applied  only  to  states  and  not  to  the  territorial  acquisitions. 
Under  the  treaty,  a  complete  discretion  was  left  to  the  United 
States  as  to  the  time  and  manner  of  admission  of  the  inhabitants 
of  the  ceded  territory  into  the  Union;  and  he  had  no  idea  that 
it  would  be  necessary  to  admit  them  within  the  twelve  years 
during  which  the  commercial  privileges  were  enjoyed  by  France 
and  Spain.  There  could,  therefore,  be  no  possible  violation  of 
the  Constitution.^^ 


2T  Annals  of  Congress,  8  Cong.,  1  Sess.   (1803-1804),  440-441. 

28  lUd.,  437. 

29  Ibid.,  455. 
soiud.,  442. 
31  Ibid.,  450. 


Commercial  Privileges  11 

Exactly  what  Elliott  did  not  anticipate  came  to  pass,  for  the 
lower  part  of  the  territory  entered  the  Union  as  the  state  of 
Louisiana  before  the  twelve-year  period  had  elapsed.^^ 

Crowninshield  of  Massachusetts  combined  the  arguments  of 
the  defenders  of  the  treaty  by  stating  that  it  was  not  unconsti- 
tutional to  receive  the  ships  of  France  and  Spain  in  the  ports 
of  the  new  territory  upon  any  terms  whatever  because  the  stipu- 
lation was  a  mere  condition  of  the  purchase,  a  commercial  regu- 
lation to  be  agreed  to  or  disagreed  to  by  the  House.  Since  the 
privilege  was  extended  only  to  ports  in  the  ceded  territory  no 
injury  was  done  to  the  rights  of  ports  in  the  Atlantic  states.^^ 

Crowninshield 's  last  statement  did  not  pass  unchallenged. 
Just  as  it  was  fear  of  losing  political  power  which  drove  certain 
of  the  New  Englanders  to  oppose  the  third  article  of  the  treaty, 
so  it  was  sectional  and  economic  interests  which  dictated  their 
stand  on  the  seventh.  Roger  Griswold  presented  the  c^e  clearly 
and  frankly.  To  admit  the  ships  of  France  and  Spain  into  the 
port  of  New  Orleans,  on  the  same  terms  with  American  ships, 
would  result  in  the  development  of  French  and  Spanish  ship- 
ping and  the  ruin  of  the  trade  of  the  Atlantic  ports.  ''How 
gentlemen,"  he  concluded,  ''under  these  circumstances  can  con- 
sider the  interests  of  the  Eastern  States  uninjured,  is  to  me 
inexplicable. '  '^* 

Once  more  was  the  distinction  between  state  and  territor^% 
and  the  powers  of  the  Government  over  the  latter,  set  forth  by 
Nicholson,  when  he  said  that  Louisiana 

is  a  territory  purchased  by  the  United  States  in  their  confederate  capacity, 
and  may  be  disposed  of  by  them  at  pleasure.  It  is  in  the  nature  of  a  colony 
whose  commerce  may  he  regulated  without  any  reference  to  the  Constitu- 
tion.    Had  it  been  the  Island  of  Cuba  which  was  ceded  to  us,  under   a 


32  Difficulties  arising  as  a  result  of  its  admission  are  discussed  in  the 
latter  part  of  this  chapter. 

33  Annals  of  Congress,  8  Cong.,  1  Sess.   (1803-1804),  459. 

34  Ihid.,  464-465. 


78         Constitutional  History  of  the  Louisiana  Purchase 

similar  <  condition  of  admitting  French  and  Spanish  vessels  for  a  limited 
time  into  the  Havannah,  could  it  possibly  have  been  contended  that  this 
would  be  giving  a  preference  to  the  ports  of  one  State  over  those  of  another, 
or  that  the  uniformity  of  duties,  imports  and  excises  throughout  the  United 
States  would  have  been  destroyed  ?35  And  because  Louisiana  lies  adjacent 
to  our  territory,  is  it  to  be  viewed  in  a  different  light  ?36 

Territories,  then,  according  to  Nicholson,  were  beyond  the 
pale  of  the  Constitution.  Not  satisfied  with  this  sweeping  inter- 
pretation, defenders  of  the  treaty  found  still  other  grounds  of 
justification  of  the  contested  provisions.  Rodney  of  Delaware 
even  contended  that  if  the  territory  of  the  United  States  bene- 
fited because  of  particular  territorial  regulations,  the  territory 
being  the  common  property  of  the  United  States,  every  state 
in  the  Union  reaped  the  benefit.^^ 

It  is  very  doubtful  if  Rodney 's  arguments  carried  ojvy  weight 
with  the  New  England  group,  who  felt  not  only  their  political 
power  but  also  their  shipping  interests  to  be  endangered.  A 
common  benefit  to  be  derived  by  the  states  under  the  treaty  was 
beyond  their  ken. 

Mitchill,  like  Nicholson,  considered  the  treaty-making  power 
"unfettered  by  constitutional  impediments  and  like  that  great 
charter  of  freedom  itself,  originates  from  its  own  source, 
supreme  laws  of  the  land."  A  treaty,  therefore,  according  to 
Mitchill,  could  hardly  be  conceived  as  unconstitutional  unless 
it  outraged  all  common  principles,  rights  and  feelings.  Thus 
interpreted,  no  charges  of  unconstitutionality  could  be  brought 
against  the  seventh  article  of  the  treaty.^^ 


35  Nicholson  was  here  approaching  one  of  the  questions  involved  in  the 
Insular  Cases.    His  speech  is  there  quoted,  in  part,  in  Insular  Cases,  316. 

SQ  Annals  of  Congress,  8  Cong.,  1  Sess.  (1803-1804),  471.     Italics  mine. 

5T  Ihid.,  475.  Cf.  the  argument  in  Insular  Cases,  203:  ''All  legislation 
for  Territories  being  enacted  by  the  Congress  chosen  by  the  States,  and  the 
Territory  being  the  property  of  the  United  States,  all  the  States  are  equally 
advantaged  by  whatever  is  done  toward  the  regulation  of  such  Territories. ' ' 

s»IMd.,  481-482. 


Commercial  Privileges  79 

So  radical  a  view  found  few  supporters.  It  was  a  difficult 
matter  to  convince  even  the  most  ardent  defenders  of  the  treaty 
that  the  treaty-making  power  was  on  a  plane  with  the  very 
instrument  which  had  brought  it  into  existence. 

John  Randolph  called  attention  to  the  fact  that  by  the  third 
article  of  the  Treaty  of  London,^^  the  United  States  was  pledged 
not  to  impose  on  imports  in  British  vessels  from  British  terri- 
tories in  America,  adjacent  to  the  United  States,  any  higher 
duties  than  would  be  paid  upon  such  imports,  if  brought  into 
the  Atlantic  ports  of  the  United  States  in  American  vessels. 
Here  was  no  distinction  between  territory  and  state,  the  ports 
being  those  of  New  York.  Randolph  said  he  did  not  defend  the 
constitutionality  of  this  provision;  as  a  matter  of  fact,  he  had 
not  voted  to  carry  the  treaty  into  effect.  He  desired  to  know 
how  such  men  as  Griswold  of  Connecticut,  who  had  advocated 
the  treaty,  got  over  the  constitutional  difficulty  which  was  urged 
against  the  Louisiana  treaty.  How  could  a  preference  be  given 
to  particular  ports  of  certain  states  which  could  not  constitu- 
tionally be  given  to  the  ports  of  New  Orleans,  not  within  a 
state  r^ 

Years  afterwards,  James  Madison  described  the  nature  of 
the  provision  concerning  commercial  privileges  made  by  the 
Louisiana  Treaty.  Writing  to  Robert  Walsh,  November  27, 
1819,  he  said : 

In  the  case  of  Louisiana,  there  is  a  circumstance  which  may  deserve 
notice.  In  the  Treaty  ceding  it,  a  privilege  was  retained  by  the  ceding 
party,  which  distinguishes  between  its  ports  &  others  of  the  U.  S.  for  a 
special  purpose  &  a  short  period.  This  privilege,  however,  was  the  result, 
not  of  an  ordinary  legislative  power  in  Congress;  nor  was  it  the  result  of 
an  arrangement  between  Congress  4"  ^^^  people  of  Louisiana.  It  rests  on 
the  ground  that  the  same  power,  even  in  the  nation,  over  that  territory, 
OS  over  the  original  territory  of  the   U.  S.,  never  existed;  the  privilege 


39  Jay 's  Treaty. 

^0  Annals  of  Congress,  8  Cong.,  1  Sess.   (1803-1804),  .483-484. 


80         Constitutional  History  of  the  Louisiana  Purchase 

alluded  to  being  in  the  deed  of  cession  carved  hy  the  foreign  owner  out  of 
the  title  conveyed  to  the  purclmser.  A  sort  of  necessity,  therefore,  was 
thought  to  belong  to  so  peculiar  and  extraordinary  a  case.  Notwithstand- 
ing this  plea,  it  is  presumable  that  if  the  privilege  had  materially  affected 
the  rights  of  other  ports,  or  had  been  of  a  permanent  or  durable  character, 
the  occurrence  would  not  have  been  so  little  regarded.  Congress  would 
not  be  allowed  to  effect,  through  the  medium  of  a  Treaty,  obnoxious  dis- 
crimination between  new  and  old  States  more  than  among  the  latter.^i 

Because  of  Madison's  knowledge  of  the  meaning  of  the  Con- 
stitution, it  is  interesting  to  hear  from  him  that  the  commercial 
privileges  granted  by  the  treaty  were  "in  the  deed  of  cession, 
carved  by  the  foreign  owner  out  of  the  title  conveyed  to  the 
purchaser,"  and  that  the  United  States  never  possessed  entire 
PQwer  over  that  territory  as  over  the  original  territory  of  the 
United  States. 

As  already  shown,  defenders  of  the  constitutionality  of  the 
seventh  article  of  the  treaty  based  their  arguments  on  the  dis- 
tinction between  territory  and  state.  During  the  debate  on  the 
seventh  article,  Elliott  had  declared  that  he  had  no  idea  that  it 
would  be  necessary  to  admit  the  inhabitants  of  Louisiana  to 
statehood  within  the  twelve  years  during  which  the  commercial 
privileges  were  to  be  enjoyed  by  France  and  Spain.  The  ques- 
tion is  at  once  suggested :  if  Louisiana  should  be  admitted  before 
this  twelve-year  period  had  elapsed  could  the  provisions  of  the 
treaty  be  carried  out  in  the  face  of  the  apparent  violation  of 
the  constitutional  prohibition  against  granting  preferences  to 
ports  of  one  state  over  those  of  another?  A  topic  of  conjecture 
became  a  definite  fact,  for  Louisiana  was  admitted  into  the 
Union  as  a  state,  April  30,  1812,  four  years  before  the  twelve- 
year  period  during  which  preferences  were  to  be  granted  to  the 
ships  of  France  and  Spain.  Curiously  enough,  the  New  Eng- 
landers  did  not  raise  the  point  during  the  debates  on  the  passage 


41  Madison,  Letters  and  Other  Writings  (Congressional  ed.).  Ill,  153- 
154;  Writings  (Hunt,  ed.),  IX,  7-8.    Italics  mine. 


Commercial  Privileges  81 

of  the  bill  admitting  Louisiana  into  the  IJnion.*^  Attention  was 
called  to  it  through  the  complaints  made  by  the  French  minister, 
Hyde  de  Neuville,  to  John  Quincy  Adams,  Monroe's  secretary 
of  state.*^ 

Soon  after  the  war  of  1812,  the  United  States  adopted  a  plan 
of  reciprocity.  Discriminating  tonnage  duties  on  foreign  vessels 
.  were  to  be  repealed  in  favor  of  any  nation  whenever  the  Presi- 
dent should  be  satisfied  that  similar  discriminating  duties  of 
such  foreign  nation,  so  far  as  they  should  be  operative  against 
the  United  States,  had  been  abolished.^*  England  took  advan- 
tage of  this  offer,*^  and  was  followed  by  the  Netherlands,  Sweden, 
Prussia  and  certain  of  the  Hanseatic  cities.*^  France,  however, 
declined,  and  soon  began  to  complain  of  discrimination  against 
her  vessels.  A  formal  complaint  was  lodged  with  Secretary  of 
State  John  Quincy  Adams  in  1817  by  Baron  de  Neuville.  This, 
of  course,  was  several  years  after  the  admission  of  Louisiana  as 
a  state,  and  also  after  the  expiration  of  the  period  during  which 
France  and  Spain  were  to  enjoy  commercial  privileges  in  the 
ports  of  Louisiana.  De  Neuville  protested  against  the  grant  of 
privileges  to  Great  Britain  in  the  ports  of  the  United  States, 
and  demanded  similar  privileges  for  France  in  the  ports  of 
Louisiana,  in  accordance  with  article  eight  of  the  treaty  of  1803 
which  stipulated  that  "in  future  and  forever  after  the  expira- 
tion of  the  twelve  years,  the  ships  of  France  shall  be  treated  upon 
the  equal  footing  of  the  most  favored  nations  in  the  ports  above 
mentioned.  "^^ 


42  Adams  to  de  Neuville,  June  15,  1821,  in  American  State  Papers, 
Foreign  Relations,  V,  182. 

43  See  Max  Farrand,  ' '  The  Commercial  Privileges  of  the  Treaty  of 
1803,"  in  American  Historical  Review,  VII,  494-499.  This  article  was 
closely  followed.  All  of  the  documents  bearing  on  the  matter  have  been 
consulted,  however,  and  citations  have  been  made  directly  to  them. 

44  Z7.  S.  Statutes  at  Large,  March  3,  1815,  ch.  77. 

45  American  State  Papers,  Foreign  Relations,  IV,  7-8. 
^elbid.,  738. 

47  De  Neuville  to  Adams,  December  15,  1817,  ihid.,  V,  152. 


82         Cmistitutional  History  of  the  Louisiana  Purchase 

Adams  replied  that  French  vessels  were  so  treated;  that 
English  vessels  were  granted  privileges  because  of  similar  ones 
made  to  the  United  States;  and  that  France  could  obtain  the 
privileges  held  by  vessels  of  Great  Britain  if  she  would  make 
the  same  provisions  for  American  ships  in  return.  This  would 
hold  true  for  all  the  ports  of  the  United  States  as  well  as  those 
of  Louisiana.  Adams  said  it  would  be  a  violation  of  the  Con- 
stitution to  admit  French  vessels  into  the  ports  of  Louisiana 
upon  payment  of  the  same  duties  as  vessels  of  the  United  States, 
because  the  Constitution  provides  ''that  no  preference  shall  be 
given  to  the  ports  of  one  State  over  those  of  another.  "^^  De 
Neuville  pointed  out  that  France  had  enjoyed  such  privileges 
in  1815,  despite  the  apparent  constitutional  difficulties  and 
asked  why  they  could  not  be  enjoyed  again.*^ 

No  answer  was  made  at  the  time  but  nearly  three  years  later 
de  Neuville  pressed  for  one^*'  and  Adams  made  his  reply.  He 
declared  it  to  be  a  question  for  the  Senate  to  decide  whether  the 
commercial  privileges  of  the  Louisiana  treaty  were  compatible 
with  the  Constitution  of  the  United  States  or  not.  There  was 
no  question,  however,  about  the  claim  put  forward  by  France; 
it  was  directly  contrary  to  the  provision  of  the  Constitution  that 
no  preference  could  be  given  to  the  ports  of  one  state  over  those 
of  another.  What  had  happened  in  the  ca^e  of  Louisiana  did 
not  alter  the  interpretation  of  the  Constitution.  Had  any  of 
the  other  states  so  desired,  the  act  of  admission  of  Louisiana 
might  have  been  delayed  until  the  twelve-year  period  had 
elapsed.  Waiving  this  right  and  allowing  the  admission  ''can 
be  considered  in  no  other  light  than  a  friendly  grant  in  advance 
of  that  which  in  the  lapse  of  three  short  years  might  have  been 


48  Adams  to  de  Neuville,  December  23,  1817,  ihid.,  152-153. 

49  De  Neuville  to  Adams,  June  16,  1818,  ibid.,  154-155. 

50  De  Neuville  to  Adams,  February  23,  1821,  ibid.,  162-163. 


Commercial  Privileges  83 

claimed  as  an  undeniable  right.  "^^  France  had  received  no 
wrong,  and  therefore  had  no  cause  for  complaint. ^^  Soon  after 
this  the  question  was  dropped,  despite  the  efforts  of  de  Neuville 
to  continue  negotiations.^^ 


51  Adams  to  de  Neuville,  March  29,  1821,  iMd.,  163-165, 

52  Adams  to  de  Neuville,  June  15,  1821,  iMd.,  180-184. 

53  De  Neuville  to  Adams,  June  30,  1821,  iMd.,  186-192 ;  de  Neuville  to 
Adams,  August  15,  1821,  ibid.,  193-194;  de  Neuville  to  Adams,  October  15, 
1821,  iMd.,  194-195. 


CHAPTER  VI 
THE   GOVERNMENT   OF   THE   ACQUIRED   TERRITORY 

Louisiana  having  been  acquired  by  the  United  States,  it  was 
necessary  that  measures  be  taken  for  the  occupation  and  govern- 
ment of  that  country.  The  attention  of  Congress  was  called  to 
this  fact  by  President  Jefferson  in  the  special  message  of  October 
21,  1803.^  Congress  took  immediate  action.  On  October  25, 
the  following  resolutions  were  delivered  at  the  table  of  the  clerk 
of  the  House,  and  read : 

1.  Besolved,  That  provision  ought  to  be  made  for  carrying  into  effect 
the  treaty  and  conventions  concluded  at  Paris  on  the  thirtieth  of  April, 
1803,  between  the  United  States  of  America  and  the  French  Kepublic. 

2.  Besolved,  That  so  much  of  the  Message  of  the  President,  of  the 
twenty-first  instant,  as  relates  to  the  establishment  of  a  Provisional  Gov- 
ernment over  the  Territory  acquired  by  the  United  States,  in  virtue  of  the 
treaty  and  conventions  lately  negotiated  with  the  French  Eepublic  be 
referred  to  a  select  committee;  and  that  they  report  by  bill,  or  otherwise. 

3.  Besolved,  That  so  much  of  the  aforesaid  conventions  as  relates  to 
the  payment,  by  the  United  States,  of  sixty  millions  of  francs  to  the 
French  Eepublic,  and  to  the  payment,  by  the  United  States,  of  debts  due 
by  France  to  citizens  of  the  United  States,  be  referred  to  the  Committee 
of  Ways  and  Means.  2 

The  first  resolution  was  agreed  upon  in  the  House  by  a  vote 
of  ninety  yeas  to  twenty-five  nays.^  The  second  was  again 
read  and  amended,  adding  ''occupation  and"  before  ''establish- 
ment," and  was  referred  to  a  committee  consisting  of  John 
Randolph  of  Virginia,  Gaylord  Griswold  of  New  York,  John 
Rhea  of  Tennessee,  William  Hoge  of  Pennsylvania,  and  George 
Bedinger  of  Kentucky.  The  third  resolution  was  reported  from 
the  Committee  of  the  Whole,  read  and  agreed  to.* 

1  Eichardson,  Messages  and  Papers  of  the  Presidents,  I,  362-363. 

2  Annals  of  Congress,  8  Cong.,  1  Sess.  (1803-1804),  488. 
8  Ibid. 

4  Hid.,  489. 


Govermnent  of  the  Acquired  Territory  85 

Two  days  later  the  House  resolved  itself  into  a  Committee 
of  the  Whole  on  a  bill  from  the  Senate  enabling  the  President 
to  take  possession  of  the  ceded  territory  and  empowering  him 
to  use  the  army  and  navy  if  necessary,  and  also  so  much  of  the 
sum  appropriated  by  the  acts  as  might  be  necessary.^  Section 
two  of  the  Senate  bill  provided : 

That,  until  Congress  shall  have  made  provision  for  the  temporary  gov- 
ernment of  the  said  Territories,  all  the  military,  civil,  and  judicial  powers, 
exercised  by  the  officers  of  the  existing  government  of  the  same,  shall  be 
vested  in  such  person  and  persons,  and  shall  be  exercised  in  such  manner, 
as  the  President  of  the  United  States  shall  direct.6 

It  was  certain  that  this  section  of  the  bill  would  not  be 
allowed  to  pass  without  opposition  on  constitutional  grounds. 
Party  lines  were  not  now  held  so  strictly  as  when  the  provisions 
of  the  treaty  were  being  discussed.  For  instance,  the  real 
objection  to  the  passage  of  the  section  was  voiced  by  John  Ran- 
dolph. While  recognizing  the  necessity  of  vesting  power  in  the 
Executive  which  would  enable  him  to  take  possession  of  Louis- 
iana, Randolph  declared  himself  opposed  to  so  extensive  a  grant 
as  that  contained  in  the  bill.  In  order  to  have  a  check  on  the 
Executive,  he  moved  an  amendment  substituting  in  place  of  the 
words,  ^'Congress  shall  have  made  provision  for  the  temporary 
government  of  the  said  territories,"  the  words,  '^the  expiration 
of  the  present  session  of  Congress,  unless  provision  for  the  tem- 
porary government  of  the  said  territories  be  sooner  made  by 
Congress. ' '  Thus  the  power  of  the  President  would  cease  at  any 
time  during  the  session  provided  Congress  took  action;  at  most, 
his  power  would  continue  only  until  the  expiration  of  the  session. 
Congress  would  be  forced  to  take  early  measures  leading  to  the 
reduction  of  the  great  power  granted  to  the  Executive.'^ 


5  Hid.,  497. 

6  lUd.,  498. 

7  Ihid. 


86         ConstitutioTval  History  of  the  Louisiama  Purchase 

Randolph  was  willing  to  support  his  party  to  a  certain  extent 
but  he  still  kept  a  watchful  eye  on  what  to  him  was  a  source 
of  grave  danger — too  extensive  a  power  in  the  Executive. 

Other  members  of  the  House  were  even  more  strongly  opposed 
to  the  section  of  the  bill  than  Randolph.  Among  these  was 
Roger  Griswold  of  Connecticut,  who  moved  to  strike  out  the 
whole  of  the  section  on  the  ground  that  ignorance  of  what  the 
powers  exercised  by  officials  of  the  territory  were  might  lead 
to  trouble  if  their  continuance  was  authorized.  It  was  even 
probable,  he  contended,  that  some  of  them  were  inconsistent 
with  the  Constitution  of  the  United  States.^  Furthermore,  the 
transfer  to  the  President  of  all  the  civil,  military  and  judicial 
powers  being  exercised  in  the  territory  would  be  making  him 
legislator,  judge  and  executive,  something  which  could  not  con- 
stitutionally be  done.^ 

Griswold 's  motion  was  seconded  by  Elliott,  who  held  that  the 
grant  of  such  extensive  powers  to  the  President,  even  over  a 
territory,  was  unconstitutional.  Should  it  be  necessary  to  enact 
such  a  provision  as  that  planned  for  in  the  section  it  was  Con- 
gress who  must  take  up  the  task  of  legislation.^^ 

Nicholson  defended  the  constitutionality  of  the  bill.  The 
President,  according  to  his  interpretation,  was  merely  invested 
with  the  appointment  of  persons  to  exercise  the  civil,  military 
and  judicial  powers  of  the  existing  government,  and  was  not 
invested  with  the  exercise  of  them  himself.  To  Nicholson,  this 
was  not  different  from  the  powers  exercised  by  the  President  in 
the  appointment  of  officers  under  the  Ordinance  of  1787.^^ 

Griswold  answered  that  since  the  powers  were  to  be  exercised 
as  the  President  should  direct  they  were  virtually  exercised  by 
him;  and  if  Congress  could  not  transfer  to  him  legislative  and 

»  Annals  of  Congress,  8  Cong.,  1  Sess.  (1803-1804),  498-499. 
^lUd.,  500-501. 
^oiMd.,  499. 
11  Ibid.,  501. 


Goverrwnent  of  the  Acquired  Territory  87 

judicial  power  in  any  other  territory,  they  could  not  in  Louis- 
iana. Furthermore,  the  section  of  the  bill  was  unconstitutional 
because  it  gave  to  the  President  full  power  to  appoint  all  officers 
in  the  province,  without  the  sanction  of  the  Senate.^^ 

Mitchill  interpreted  the  Constitution  differently.  Congress, 
having  the  right  to  dispose  of  the  territory  and  property  of 
the  United  States,  could  empower  the  President  to  put  others 
in  a  position  to  act.  Instead  of  a  claim  of  prerogative  on  the 
part  of  the  Executive  it  was  a  constitutional  deposit  of  powers 
in  him  by  Congress.^^  On  the  other  hand,  Dana  of  Connecticut 
regarded  the  power  granted  to  the  President  in  the  bill  as 
creating  '^a  complete  despotism."^* 

In  the  light  of  future  interpretation,  the  speech  of  Varnum 
of  Massachusetts  is  fraught  with  significance: 

We  are  told  that  we  are  about  to  exercise  a  power  over  the  ceded 
territory  not  authorized  by  the  Constitution,  He  would  asJc  if  the  Consti- 
tution were  to  take  effect  as  soon  as  the  United  States  take  possession  of 
the  territory?  The  treaty  provides  that  'the  inhabitants  of  the  ceded 
territory  shall  be  incorporated  in  the  union  of  the  United  States,  and 
admitted  as  soon  as  possible. '  How  incorporated  ?  By  a  legislative  act  ? 
No,  'according  to  the  principles  of  the  Federal  Constitution,  to  the  enjoy- 
ment of  all  the  rights,  advantages,  and  immunities  of  citizens  of  the  United 
States;  and  in  the  meantime  they  shall  be  maintained  and  protected  in  the 
full  enjoyment  of  their  liberty,  property,  and  the  religion  which  they  pro- 
fess.'    In  what  meantime? 

There  is  a  time  when  the  country  is  acquired,  and  a  time  when  it  will 
be  admitted  into  the  Union.  Between  these  periods,  in  the  meantime,  the 
people  are  to  enjoy  their  liberty,  and  the  religion  which  they  profess.  I 
can  devise  no  way  of  their  enjoying  these  rights,  until  admitted  into  the 
Union,  but  by  their  continuing  under  the  government  of  the  law  of  Spain. 
The  Senate  have  made  provision  for  carrying  into  effect  this  part  of  the 
treaty,  and  it  cannot  be  carried  into  effect  in  any  other  way. is 


12  Ibid.,  510.     Italics  mine. 

^^Ihid.,  502-504. 

i^Ibid.,  504-506. 

15  Ihid.,  505-506.     Italics  mine. 


88         Constitutional  History  of  the  Louisiana  Purchase 

Another  member  from  Massachusetts,  Eustis,  also  supported 
the  bill.  The  Government,  according  to  him,  had  a  constitutional 
right  to  acquire  territory,  and  to  take  possession  of  it  when 
acquired,  the  latter  being  not  only  a  right,  but  a  duty  of  the 
Government.  Declaring  this  to  be  a  new  case,  Eustis  based  the 
extent  of  power  vested  in  the  Executive  on  necessity.  He  was 
willing  to  give  the  President  authority  even  to  institute  such 
powers  as  might  be  necessary  for  the  well-being  of  the  country 
until  Congress  should  make  the  requisite  laws.  He  failed  to  see 
any  constitutional  obstacles  to  the  carrying  out  of  the  provisions 
of  the  bill.i« 

Elliott  of  Vermont^'  and  Jackson  of  Virginia^ ^  aligned  them- 
selves with  those  who  were  against  the  second  section  of  the  bill 
because  of  its  alleged  infringement  of  the  Constitution.  Rodney 
of  Delaware  did  not  consider  that  the  bill  ''infringed  the  Con- 
stitution in  the  remotest  degree."  The  Constitution,  by  the 
third  section  of  article  four,  as  he  understood  it,  vested  Congress 
with  full  and  complete  power  to  exercise  a  sound  discretion  on 
the  subject  of  the  government  of  territories.  ''Congress,"  he 
said,  "have  a  power  in  the  Territories,  which  they  cannot  exer- 
cise in  States,  and  the  limitations  of  power,  found  in  the  Consti- 
tution, are  applicable  to  States  and  not  to  Territories."^^ 

The  question  on  striking  out  the  second  section  was  lost,  only 
thirty  votes  being  cast  in  the  affirmative.  Randolph 's  motion 
to  amend  the  section  by  the  addition  of  the  words,  "for  the 
maintaining  and  protecting  the  inhabitants  of  Louisiana  in  the 
full  enjoyment  of  their  liberty,  property,  and  religion,"  was 
agreed  to  without  a  division.^^ 


i(iA7inals  of  Congress,  8  Cong.,  1  Sess.   (1803-1804),  506. 
17  Ihid.,  508. 
IS  Ibid.,  511. 
19  Ibid.,  512-514. 
20lhid.,  514. 


Government  of  the  Acquired  Territory  89 

The  bill  enabling  the  President  to  take  possession  of  the 
territories  ceded  by  France  and  for  the  temporary  government 
thereof  was  passed  by  the  House,  October  28,  1803,  by  a  vote 
of  eighty-nine  to  twenty-three,^^  and  was  approved  by  the  Presi- 
dent October  31.^^  The  bill  did  not  escape  criticism.  Senator 
Plumer  took  exception  to  the  grant  to  the  President  of  the 
appointment  of  all  officers,  superior  and  inferior,  whereas  the 
Constitution  provided  that  Congress  might  vest  the  appointment 
of  inferior  officers  in  other  places.^^ 

Plumer 's  particular  criticism  in  this  instance  can  in  itself 
be  attacked  because  the  very  clause  of  the  Constitution  to  which 
he  referred  allows  Congress  to  vest  the  appointment  of  inferior 
officers  in  the  President  alone.  Speaking  broadly,  that  is  what 
was  done.  There  is  more  ground  for  Plumer 's  statement  that, 
"Had  such  a  bill  been  passed  by  federalists,  the  Democrats 
would  have  denounced  it  as  monarchial  but  when  enacted  by 
the  exclusive  friends  of  the  people,  it  is  pure  repuhlica7iism."~'^ 

Somewhat  similar  is  the  complaint  of  Manasseh  Cutler : 

Look  at  the  power  given  to  the  President  by  the  provisional  government 
of  Louisiana.  By  one  sweeping  clause,  he  is  made  as  despotic  as  the  Grand 
Turk.  Every  officer  is  appointed  by  him,  holds  his  commission  during  his 
pleasure,  and  is  amenable  only  to  him.  He  is  the  Executive,  the  Legislature, 
and  the  Judicature.  What  clamor  a  few  years  ago,  lest  the  President  should 
be  vested  with  too  much  power,  the  department  the  most  dangerous  of  all 
to  be  trusted.25 

Supplementing  what  had  already  been  done,  an  act  was 
passed  giving  effect  to  the  laws  of  the  United  States  within  the 
territories  ceded  by  the  treaty.^^ 

21  Ibid.,  546. 

22  Laws  of  U.  States,  III,  562. 

23  Plumer,   ''Memorandum,   1803-1804,"   64-65,  October   26,   1803. 

24  Ihid. 

25  Cutler  and  Cutler,  Life,  Journals  and  Correspondence  of  Eev.  Manas- 
seh Cutler,  II,  148. 

26  Act  approved  February  24,  1804,  Annals  of  Congress,  8  Cong.,  1 
Sess.  (1803-1804),  1253-1258. 


90         Constitutional  History  of  the  Louisimm  Purchase 

Jefferson  had  taken  it  for  granted  that  the  treaty  would  be 
ratified  and  provision  made  for  the  transfer  of  the  territory  to 
the  United  States.  As  early  as  July  18,  1803,  only  four  days 
after  the  arrival  of  the  treaty  from  France,  he  wrote  to  Governor 
Claiborne  of  Mississippi  Territory  that  the  government,  public 
property  and  archives  of  Louisiana  were  to  be  delivered  up 
immediately  after  the  exchange  of  ratifications,  which  would 
take  place  between  the  seventeenth  and  thirtieth  of  October. 
Claiborne  was  to  go  there  for  the  United  States  ^'to  transact  it, 
and  to  hold  the  place  some  little  time,  until  Congress  shall  direct 
what  is  to  be  done  more  particularly. '  '^^  Claiborne  replied  from 
Natchez,  August  12,  that  he  would  hold  himself  in  readiness  to 
embark  for  New  Orleans  immediately  on  receiving  orders.  He 
considered  it  a  very  high  honor  to  be  appointed  to  receive  the 
ceded  territory.^^ 

Jefferson  already  had  a  good  man  in  mind  to  be  governor 
of  Louisiana,  so  he  informed  Madison  July  31.  ''Sumpter"  he 
regarded  ''as  perfect  in  all  points  as  we  can  expect,  sound  judg- 
ment, standing  in  society,  knowledge  of  the  world,  wealth,  liber- 
ality, familiarity  with  the  French  language,  &  having  a  French 
wife."  Jefferson  professed  that  he  did  not  know  a  more  proper 
character  for  the  place.^^ 

Nor  did  Jefferson's  friends  await  the  transfer  of  the  territory 
before  making  suggestions  for  the  government  of  Louisiana. 
Among  them  was  Thomas  Paine  who  supposed  that  a  provisional 
government  formed  by  Congress  for  three,  five,  or  seven  years 
would  be  the  best  mode  of  beginning.     In  the  meantime  the 


2T  Jefferson  Papers,  "Letters  from  Jefferson,  1st  Series,"  IX,  (113). 

28  Jefferson  Papers,  ' '  Letters  received  at  Washington,  2nd  Series, ' ' 
XVII,  (42). 

29  Madison  Papers,  XXV,  ''Writings  to  Madison,"  Dec.  7,  1802-Nov. 
2,  1803.  This  ideal  governor  was  in  all  probability  Thomas  Sumter,  Revo- 
lutionary War  hero,  and  at  the  date  of  Jefferson's  letter.  United  States 
senator  from  South  Carolina.  For  some  reason  or  other  the  appointment 
was  not  made. 


Government  of  the  Acquired  Territory  91 

people  might  be  initiated  into  the  practice  of  electing  their 
municipal  government,  and  thus  prepare  for  the  election  of  a 
state  government.  Characteristic  of  Paine  is  the  additional  note 
that  it  would  be  a  good  plan  to  let  the  people  elect  their  church 
ministers,  thus  freeing  them  from  papal  control.^^ 

Before  going  to  New  Orleans  Claiborne  made  inquiries  con- 
cerning the  character  of  the  inhabitants  of  Louisiana,  the  results 
of  which  he  conveyed  by  letter  to  Jefferson.  On  September  29 
he  wrote  that  a  previous  statement  of  his  that  a  majority  of  the 
citizens  of  Louisiana  could  read  and  write  was  based  on  incorrect 
information;  on  the  contrary,  they  were  ''involved  in  great 
ignorance."  The  form  of  government  which  might  be  pre- 
scribed for  Louisiana,  Claiborne  reported,  was  exciting  great 
anxiety.  The  existing  government  of  that  territory  he  described 
as  a  despotism,  partly  civil,  partly  military,  and  in  some  degree 
ecclesiastical.  To  regenerate  a  system  based  on  principles  so 
abhorrent  to  those  of  the  United  States  would  be  a  difficult  task. 
Although  he  felt  that  the  Louisianians  could  be  trusted  very  far, 
it  was  Claiborne 's  opinion,  ' '  that  until  a  knowledge  of  the  Amer- 
ican Constitutions,  Laws,  Language  and  customs  is  more  gen- 
erally diffused,  a  State  Government  in  Louisiana  would  not  be 
managed  with  discretion. '  '^^ 

Claiborne 's  opinion  of  the  political  fitness  of  the  Louisianians 
for  self-government  was  to  change  many  times  during  the  next 
few  years,  as  will  be  shown. 

Jefferson  had  been  busily  engaged  gathering  material  from 
many  sources  in  order  that  Congress  might  be  supplied  with  all 
information  that  might  be  of  assistance  in  the  framing  of  a  form 
of  government  for  Louisiana.  The  result  was  a  state  paper  which 
he  submitted  to  that  body,  November  14,  1803,  covering  a  wide 


30  Jefferson  Tapers,  ' '  Letters  received  at  Paris  and  Philadelphia, ' '  2d 
Series,  LXV,  (193). 

31  Jefferson  Papers,  * '  Letters  received  at  Washington, ' '  2d  Series,  XVII, 
(38). 


92         Constitutional  History  of  the  Louisiana  Purchase 

range  of  topics,  such  as  boundaries,  population,  resources,  exist- 
ing system  of  government,  exports  and  imports,  and  many 
others.^^ 

General  James  Wilkinson  was  associated  with  Governor 
Claiborne  as  commissioner  for  the  purpose  of  receiving  Louis- 
iana from  the  French  officials.  The  two  commissioners  proceeded 
to  New  Orleans  where  the  transfer  took  place  December  20,  1803, 
Laussat  representing  the  French  Government.^^  Claiborne,  who 
was  to  act  as  governor  of  the  territory,  made  an  address  in  which 
the  people  were  assured  of  fair  treatment  and  protection  under 
the  terms  of  the  treaty  of  the  cession.^* 

Steps  were  taken  by  the  new  governor  to  supply  the  needs 
of  government,  especially  in  New  Orleans  where  the  cabildo  had 
been  abolished  by  the  French  prefect.  The  doing  away  with  this 
body  Claiborne  considered  an  act  beneficial  to  the  United  States 
because  the  cabildo  ''was  created  on  principles  altogether  incon- 
gruous with  those  of  our  Government.  "^^ 


32  American  State  Papers,  Miscellaneous,  I,  344-356. 

33  Claiborne  to  Madison,  December  20,  1803,  in  Claiborne  Papers, 
'*  Claiborne 's  Correspondence  relative  to  Louisiana,  1803-1804,"  I.  For 
a  description  by  an  eye  witness,  see  Robin,  Voyages  dans  I'interieur  de  la 
Louisiane,  II,  137-140.  More  recent  accounts  are  given  by  Grace  King, 
New  Orleans,  160-163,  and  Gayarre,  History  of  Louisiana,  IV,  619-622. 
A  copy  of  the  instrument  of  cession,  signed  by  Claiborne,  Wilkinson,  and 
Laussat  is  in  the  Annals  of  Congress,  8  Cong.,  2  Sess.  (1804-1805),  Appen- 
dix, 1229-1231. 

^^  Annals  of  Congress,  8  Cong.,  2  Sess.  (1804r-1805),  Appendix,  1232- 
1233. 

35  Claiborne  to  Madison,  December  27,  1803,  in  Claiborne  Papers,  **  Clai- 
borne 's  Correspondence  relative  to  Louisiana, "  I ;  Robertson,  Louisiana 
under  the  Eule  of  Spain,  France,  and  the  United  States,  II,  227. 

The  cabildo  had  been  established  in  accordance  with  the  proclamation 
of  November  21,  1769,  issued  by  Don  Alexander  O'Reilly,  who  had  been 
commissioned  governor  and  captain-general  of  the  province  of  Louisiana 
in  April  of  the  same  year.  The  proclamation  stipulated  that  the  cabildo, 
which  was  substituted  for  the  superior  council,  should  be  *' composed  of  six 
perpetual  regidors,  two  ordinary  alcaldes,  an  attorney-general-syndic,  and  a 
elerk;  over  which  the  governor  would  preside  in  person."  The  cabildo  sat 
every  Friday  but  might  be  convened  by  the  governor  at  any  time.  In  the 
absence  of  the  governor  one  of  the  ordinary  alcaldes  presided.  Martin, 
History  of  Louisiana,  209-210. 


Govermnent  of  the  Acquired  Territory  93 

Claiborne  was  vested,  temporarily,  with  all  the  powers  pre- 
viously held  by  the  Governor-General  and  the  Intendant  of 
Louisiana.  The  inhabitants  of  the  territory  had  expected  a 
much  more  liberal  form  of  government  and  were  greatly  dis- 
appointed because  they  were  granted  no  voice  in  it.  Moreover, 
the  new  governor  was  unacquainted  with  their  language,  and 
mutual  misunderstandings  and  suspicions  were,  as  a  result,  cer- 
tain to  arise. 

Then,  too,  there  were  a  number  of  American  residents  in 
New  Orleans  and  the  neighboring  country  who  sought  to  gain 
political  influence  through  exploiting  the  grievances  of  the 
Louisianians.  Their  knowledge  of  American  theories  of  govern- 
ment and  of  American  institutions  gave  them  an  opportunity 
of  criticizing  the  territorial  government  and,  on  the  whole, 
making  the  governor's  position  an  exceedingly  unhappy  one. 

Claiborne's  opinion  of  the  people  fluctuated  back  and  forth, 
now  favorable,  now  unfavorable.  Difficulties  of  government 
caused  him  much  embarrassment  and  he  urged  the  early  estab- 
lishment of  some  permanent  government  for  the  territory.  The 
constitution  to  be  given  ought  to  be  as  republican  as  the  people 
could  safely  be  intrusted  with.  Training  and  tradition  had 
rendered  the  people  unprepared  to  take  a  very  active  part  in 
government,  however.  Trial  by  jury  would  at  first  be  an 
embarrassment  to  the  administration  of  justice.^®  The  better 
acquainted  he  became  with  the  inhabitants  the  more  convinced 
he  was  of  their  unfitness  for  a  representative  government.  He 
considered  it  advisable  that  they  remain  for  some  years  under 
the  immediate  guardianship  of  Congress.  For  the  present  a 
local  and  temporary  government  for  Louisiana,  upon  principles 
somewhat  similar  to  the  present  territorial  government  of  the 
first  grade  ought  to  be  established.  In  the  same  letter  Claiborne 
reported  that  the  merchants  of  the  city  desired  a  law  to  be  passed 

36  Claiborne  to  Madison,  January  2,  1804,  in  Eobertson,  Louisiana  under 
the  Bule  of  Spain,  France,  and  the  United  States,  II,  232-234. 


94         Constitutional  History  of  the  Louisiama  Purchase 

for  the  regulation  of  commerce.  They  were  complaining  of 
^  great  injury  for  want  of  registers  for  their  vessels,  and  of  being 
yet  subject  to  export  duties  and  other  commercial  inconven- 
iences.^'^ 

A  somewhat  similar  opinion  was  expressed  to  Jefferson  a 
few  days  later,  to  which  Claiborne  added  that  he  did  not  share 
the  opinion  of  some  that  a  military  government  could  alone,  for 
the  present,  insure  good  order  and  harmony.  Louisiana  could 
be  governed  without  force.  He  ''could  wish  Louisiana  a  State 
tomorrow  but  that  would  be  impolitic.  "^^ 

One  of  the  questions  which  early  presented  itself  to  Claiborne 
was  that  of  the  importation  of  slaves.  In  a  letter  to  Madison, 
January  31,  1804,  he  reported  the  arrival  a  few  days  before  of 
a  ship  with  fifty  African  negroes  for  sale.  He  was  opposed  to 
the  traffic,  but,  doubting  his  authority  to  prevent  it,  appealed 
to  Mr.  Leonard,  late  Spanish  contador  at  New  Orleans,  for 
information  as  to  the  status  of  the  slave  trade  under  Spain. 
Upon  learning  that  the  importation  of  African  slaves  had  been 
permitted,  Claiborne  did  not  interfere.^^ 

It  might  here  be  noted  that  the  prohibition  by  law  of  the 
importation  of  slaves  into  the  territory  of  Louisiana  was  urged 
upon  Congress  in  a  memorial  of  the  "American  Convention  for 
promoting  the  abolition  of  slavery,  and  improving  the  condition 
of  the  African  race"  to  the  House,  January  23,  1804.  The 
memorial  was  referred  to  the  committee  on  the  government  of 
Louisiana.*^ 


37  Claiborne  to  Madison,  January  10,  1804,  in  Claiborne  Tapers,  ''Clai- 
borne's Correspondence  relative  to  Louisiana,"   I. 

38  Claiborne  to  Jefferson,  January  16,  1804,  in  Jefferson  Papers,  ''Let- 
ters received  at  Washington,  2d  Series,"  XIX,  (19). 

39  Claiborne  Papers,  "Claiborne's  Correspondence  relative  to  Louisiana," 
I;  Eobertson,  Louisiana  under  the  Rule  of  Spain,  France  and  the  United 
States,  II,  240;  American  State  Papers,  Miscellaneous,  I,  390. 

^0  Annals  of  Congress,  8  Cong.,  1  Sess.  (1803-1804),  940.  The  memorial 
itself  is  in  the  American  State  Papers,  Miscellaneous,  I,  386,  no.  171.  In 
this  connection  see  Mary  S.  Locke,  Anti-Slavery  in  America,  147-148,  162- 
163. 


Government  of  the  Acquired  Territory  95 

On  February  6,  1804,  Claiborne  reported  the  inhabitants  of 
New  Orleans  as  manifesting  great  solicitude  for  a  form  of  gov- 
ernment, and  the  merchant  class,  in  particular,  desiring  com- 
mercial regulations.  A  spirit  of  restlessness  pervaded  the  terri- 
tory. Claiborne  felt  that  a  majority  of  the  inhabitants  were  well 
disposed  towards  the  United  States  but  the  attachment  to  France 
was  still  strong.*^  A  few  days  later  he  repeated  his  statement 
that  the  people  were  anxious  for  some  form  of  permanent  gov- 
ernment. The  rapid  increase  in  population,  bringing  into  the 
territory  all  sorts  of  adventurers,  further  complicated  the  sit- 
uation.*^ 

One  of  Claiborne's  first  measures  as  governor  had  been  to 
establish  a  Court  of  Pleas.  This  had  been  done  by  ordinance, 
issued  December  30,  1803.  The  ordinance  provided  for  a  court 
to  be  composed  of  not  less  than  seven  justices  appointed  by  the 
governor,  any  three  of  whom  might  hold  court.  In  civil  matters 
their  jurisdiction  was  limited  to  cases  not  exceeding  in  value 
three  thousand  dollars,  from  which  there  was  an  appeal  to  the 
governor  when  the  amount  in  litigation  was  over  five  hundred 
dollars.  Their  criminal  jurisdiction  was  to  extend  over  all 
criminal  cases  involving  punishment  not  to  exceed  two  hundred 
dollars  fine  and  sixty  days  imprisonment.  Each  of  the  justices 
was  to  have  jurisdiction  over  all  debts  under  one  hundred  dol- 
lars, with  right  of  appeal  to  the  Court  of  Pleas,  the  seven  justices 
sitting  together  in  court.*^ 

This  Court  of  Pleas  was  not  used  by  the  people  to  any  extent. 
The  people  preferred  the  governor  to  the  court  so  Claiborne 
decided  to  set  apart  one  day  in  every  week  for  the  hearing  and 


41  Claiborne    to    Madison,   February    6,    1804,    in    Kobertson,   Louisiana 
under  the  Bule  of  Spain,  France,  and  the  United  States,  II,  248-249. 

42  Claiborne  to  Madison,  February  13,  1804,  in  ibid.,  II,  250-251. 

43  Gayarre,  History  of  Louisiana,  IV,  3 ;  Martin,  History  of  Louisiana, 
319. 


96         Constitutional  History  of  the  Louisiana  Purchase 

deciding  of  causes  until  Congress  should  provide  some  fixed 
*  government  to  relieve  him  of  what  he  considered  a  painful 
duty.** 

Among  other  matters  Claiborne  was  somewhat  puzzled  as  to 
the  status  of  the  people  under  his  charge  with  respect  to  their 
relation  to  the  United  States.  Citizens  of  Louisiana  passing 
by  water  to  the  United  States  or  to  Europe  requested  passports 
or  letters  of  protection.  Having  had  no  instructions  on  this 
subject,  Claiborne  acted  with  some  reluctance.  Considering  the 
request  reasonable,  however,  he  issued  to  such  applicant  an 
instrument  in  writing,  providing  proof  were  given  that  he  had 
been  before,  and  on  December  20,  1803,  the  date  of  the  transfer 
of  Louisiana  to  the  United  States,  an  inhabitant  of  Louisiana.*^ 

There  was  a  desire  on  the  part  of  the  people  for  a  delegate 
in  Congress  and  Claiborne  suggested  that  in  the  formation  of  a 
government  for  Louisiana,  Congress  might  make  provision  for 
one,  placing  him  on  an  equal  footing  as  regards  privileges  with 
the  delegates  from  other  territories.*^ 

Claiborne  admitted  being  compelled  to  exercise  more  author- 
ity than  he  had  contemplated,  and  feared  his  decrees  and 
ordinances  would  present  a  novel  appearance  in  Washington. 
This  species  of  legislation  he  entered  into  only  when  necessary.*^ 

Such  were  some  of  the  difficulties  of  the  governor  of  Louis- 
iana at  the  outset  of  his  administration.    How  he  fared  later  will 


44  Claiborne  to  Madison,  February  13,  1804^  in  Claiharne  Papers,  ''Clai- 
borne's Correspondence  relative  to  Louisiana,"  I;  Eobertson,  Louisiana 
under  the  Bule  of  Spain,  France,  and  the  United  States,  II,  250. 

45  Claiborne  to  Madison,  February  20,  1804,  in  Claiborne  Paperf^,  "Clai- 
borne 's  Correspondence  relative  to  Louisiana, ' '  I.  For  the  history  of  the 
passport  in  the  United  States,  see  Gaillard  Hunt,  The  American  Passport. 
Claiborne's  issuance  of  passports  is  not  mentioned  by  Hunt. 

46  Claiborne  to  Madison,  March  1,  1804,  in  Robertson,  Louisiana  under 
the  Eule  of  Spain,  France,  and  the  United  States,  II,  254.  Before  the 
date  of  this  letter  the  Senate  had  already  debated  on  and  declined  to  grant 
a  delegate  to  Louisiana.  See  the  report  of  the  debate  in  the  Senate,  Chapter 
VII,  below. 

47  Claiborne  to  Madison,  March  2,  1804,  in  Claiborne  Papers,  ' '  Clai- 
borne 's  Correspondence  relative  to  Louisiana, ' '  I. 


Government  of  the  Acquired  Territory  97 

be  discussed  in  due  time.     We  must  turn  now  to  the  activities 
of  the  federal  authorities  at  Washington. 

Jefferson  had,  in  the  meantime,  been  making  plans  for  the 
government  of  the  territory.  An  outline  of  what  he  considered 
proper  was  submitted  to  Gallatin  in  a  letter  of  November  9, 
1803,  in  which  he  says : 

The  following  articles  belong  to  the  legislature. 

The  administration  of  justice  to  be  prompt.  Perhaps  the  judges  should 
be  obliged  to  hold  their  courts  weekly,  at  least  for  some  time  to  come.  The 
ships  of  resident  owners  to  be  naturalized,  and  in  general  the  laws  of  the 
U.  S.  respecting  navigation,  importation,  exportation,  &c;  to  be  extended 
to  the  ports  of  the  ceded  territory. 

The  hospital  to  be  provided  for. 

Slaves  not  to  be  imported,  except  from  such  of  the  U.  S.  as  prohibit 
importation. 

Without  looking  at  the  old  territorial  ordinance,  I  had  imagined  it  best 
to  found  a  government  for  the  territory  or  territories  of  lower  Louisiana 
on  that  basis.  But  on  examining  it,  I  find  it  will  not  do  at  all;  that 
it  would  turn  all  their  laws  topsy-turvy.  Still  I  believe  it  best  to  appoint 
a  governor  &  three  judges,  with  legislative  powers;  only  providing  that  the 
judges  shall  form  the  laws,  &  the  governor  have  a  negative  only,  subject 
further  to  the  negative  of  a  national  legislature.  The  existing  laws  of  the 
country  being  now  in  force,  the  new  legislature  will  introduce  the  trial  by 
jury  in  criminal  cases,  first;  the  habeas  corpus,  the  freedom  of  the  press, 
freedom  of  religion,  etc.,  as  soon  as  can  be,  and  in  general  draw  their  laws 
and  organization  to  the  mould  of  ours  by  degrees  as  they  find  practicable 
without  exciting  too  much  discontent.  In  proportion  as  we  find  the  people 
there  riper  for  receiving  these  first  principles  of  freedom,  congress  may 
from  session  to  session  confirm  their  enjoyment  of  them.48 

This  letter  is  of  importance  for  the  light  it  throws  on  Jeffer- 
son's idea  of  a  government  for  the  new  territory.  Jefferson, 
who  had  drawn  up  the  Declaration  of  Independence,  is  here 
found  planning  a  form  of  government  in  which  the  people  to 
be  governed  were  to  have  no  voice  whatever.  All  rights,  even 
those  of  jury  trial,  habeas  corpus,  freedom  of  the  press  and  of 
religion,  had  to  be  legislated  into  the  territory.     Congress  had 


48  Jefferson,  Writings  (Ford,  ed.),  VIII,  275-276,  footnote. 


98         Constitutional  History  of  the  Louisiana  Purchase 

complete  power  to  regulate  these  rights  and  privileges  as  they 
saw  fit.  It  was  a  practical  scheme  of  government,  but  it  was 
far  removed  from  the  abstract  principles  of  government  which 
Jefferson  had  been  accustomed  to  quote  in  putting  forth  the 
claims  of  the  American  colonists  against  the  British  Government. 

With  regard  to  Upper  Louisiana,  Jefferson,  in  a  postscript 
in  the  letter  quoted,  wrote  that  it  was  his  idea  that  this  region 
should  be  continued  under  its  present  form  of  government,  only 
making  it  subordinate  to  the  national  government  and  inde- 
pendent of  the  lower  part  of  Louisiana.*®  The  division  of  the 
territory  into  two  parts  was  here  early  decided  upon. 

Writing  to  Dewitt  Clinton,  December  2,  1803,  Jefferson  said 
that  much  difference  of  opinion  manifested  itself  as  to  the  man- 
ner of  governing  Louisiana.  He  added  that,  ^'Altho'  it  is  as  yet 
incapable  of  self-government  as  children,  yet  some  cannot  bring 
themselves  to  suspend  its  principles  for  a  single  moment.  "^^ 

Whether  the  settlement  of  Upper  Louisiana  should  be  pro- 
hibited gave  rise  to  three  groups  holding  different  opinions 
thereon.  One  wished  to  prohibit  it  until  the  Constitution  could 
be  amended  to  provide  for  it,  claiming  that  if  the  legislature 
were  allowed  to  open  a  land  office  there,  this  would  have  a  great 
influence  on  elections  and  end  in  a  ''yazoo  scheme,"  to  quote 
Jefferson.  The  second  group  would  have  the  legislature  pro- 
hibit settlement,  fearing  that  an  amendment  of  the  Constitution 
could  not  be  obtained.  The  last  group  was  in  favor  of  per 
mitting  immediate  settlement. ^^ 

It  had  been  Jefferson's  idea  that  the  upper  portion  of  the 
territory  should  be  closed  to  settlers.  This  he  had  stated  to 
George  D.  Erving  as  early  as  July  10,  1803.^^     John  Breckin- 


49  Jefferson,  Writings  (Ford,  ed.),  VIII,  275-276,  footnote. 

50  Ibid.,  VII,  283. 

51  Ibid. 

52  Jefferson  Papers,  '^ Letters  from  Jefferson,  1st  Series,"  IX,  (99). 


Government  of  the  Acquired  Territory  99 

ridge  of  Kentucky,  however,  informed  Jefferson  that  it  would 
be  impossible  to  prevent  the  Americans  from  crossing  the  Mis- 
sissippi, ''as  they  can  do  so  with  equal  ease  in  every  part  of  it 
for  an  extent  of  upwards  of  1000  miles.  When  they  have  once 
crossed  it,  it  will  be  the  Rubicon  to  them.  They  have  taken  this 
resolution  &  will  hazzard  all  the  consequences."^^  Jefferson, 
despite  his  letter  to  Erving,  seems  to  have  reached  the  same 
conclusion  as  Breckinridge,  for  in  a  letter  already  quoted  he  had 
declared  that  after  the  filling  up  of  the  eastern  side  of  the  Mis- 
sissippi range  after  range  of  states  would  be  laid  off  on  the 
western  side.^^ 

The  progress  made  in  planning  the  government  for  the  terri-. 
tory  can  be  traced  in  Jefferson's  correspondence.  On  January 
17,  1804,  he  wrote  to  Thomas  McKean: 

We  are  now  at  work  on  a  territorial  division  &  government  for  Louis- 
iana. It  will  probably  be  a  small  improvement  of  our  former  territorial 
governments,  or  first  grade  of  government.  The  act  proposes  to  give  them 
an  assembly  of  Notables,  selected  by  the  Governor  from  the  principal  char- 
acters of  the  territory.  This  will,  I  think,  be  a  better  legislature  than  the 
former  territorial  one  &  will  not  be  a  greater  departure  from  sound  prin- 
ciple's 

To  Doctor  Joseph  Priestley,  Jefferson  expressed  himself  well 
pleased  with  the  ''duplication  of  area  for  extending  a  govern- 
ment so  free  and  economical  as  ours."  Whether  the  country 
remained  united  or  formed  into  Atlantic  or  Mississippi  confed- 
eracies he  did  not  consider  vital  to  the  happiness  of  the  people. 
He  was  willing  to  do  all  he  could  for  either  part.^*^ 


53  John  Breckinridge  to  Jefferson,  September  10,  1803,  in  Jefferson 
Papers,  ''Letters  received  at  Washington,  2nd  Series,"  IX,    (8). 

54  See  his  letter  to  Breckinridge,  above.  Compare  also  the  arguments 
on  this  question  in  the  Senate  debate  of  January-February,  1804,  on  the 
Breckinridge  Bill,  in  Chapter  VII,  below. 

55  Jefferson,  Writings  (Ford,  ed.),  VIII,  293. 

56  Jefferson  to  Priestley,  January  29,  1804,  ibid.,  295. 


100       Constitutional  History  of  the  Louisiami  Purchase 

In  a  letter  of  January  31,  1804,  to  Robert  R.  Livingston, 
Madison  stated  that  a  form  of  government  was  under  discussion 
but  its  precise  form  was  not  yet  known.  It  was  certain,  however, 
that : 

The  provisions  generally  contemplated  will  leave  the  people  of  the  District 
for  awhile  without  the  organization  of  power  dictated  by  Republican 
theory;  but  it  is  evident  that  a  sudden  transition  to  a  condition  so  much 
in  contrast  with  that  in  which  their  ideas  and  habits  have  been  formed, 
would  be  as  inacceptable  and  as  little  beneficial  to  them  as  it  would  be 
difficult  for  the  Government  of  the  United  States.  It  may  fairly  be 
expected  that  every  blessing  of  liberty  will  be  extended  to  them  as  fast 
as  they  shall  be  prepared  and  disposed  to  receive  it.57 

The  extent  to  which  Congress  at  that  time  considered  the 
Louisianians  prepared  to  receive  the  ''blessings  of  liberty"  will 
now  be  related. 


57  Madison,  Writings  (Hunt,  ed.),  VIII,  115. 


CHAPTEE  VII 

THE  DEBATE  IN  THE   SENATE   ON  THE   LOUISIANA 
GOVERNMENT  BILL^ 

The  law  of  October  31,  1803,  which  had  placed  the  admin- 
istration of  the  Louisiana  territory,  until  further  action  by 
Congress,  in  the  hands  of  the  President,  was  recognized  as  a 
temporary  measure  and  steps  were  soon  taken  to  provide  a  differ- 
ent government.  With  this  object  in  view,  it  was  moved  in  the 
Senate  on  November  28  that  a  committee  be  appointed  to  form 
such  a  government.^  This  motion  was  taken  into  consideration 
December  5,  and  being  agreed  to.  Senators  Breckinridge  of  Ken- 
tucky, Wright  of  Maryland,  Jackson  and  Baldwin  of  Georgia 
and  Adams  of  Massachusetts  were  selected.^  The  committee, 
through  Breckinridge,  reported  on  December  30*  the  bill  which 
bears  Breckinridge's  name.  According  to  the  provisions  of  the 
bill,  as  finally  passed,  the  purchased  territory  was  divided  into 

1  The  material  used  in  the  writing  of  this  chapter  is  taken  principally 
from  Senator  William  Plumer's  **  Memorandum  of  the  proceedings  of 
Congress,  Particularly  of  the  Senate,  from  October  17,  1803,  to  March  27, 
1804,"  cited  as  Plumer's  ''Memorandum."  The  part  of  the  "Memo- 
randum" which  reports  the  Senate  debate  of  January-February,  1804,  on 
the  Louisiana  Government  Bill  was  contributed  by  the  present  writer  to  the 
American  Historioal  Review,  XXII,  340-364. 

Plumer's  ''Memorandum"  seems  to  have  escaped  the  attention  of 
previous  writers  of  American  history.  William  Plumer,  Jr.,  beyond  quoting 
a  few  paragraphs  from  it,  did  not  make  use  of  it  in  his  Life  of  William 
Plumer.  The  statement  that  this  debate  in  the  Senate  was  not  reported 
has  been  made  by  Henrj'  Adams,  History  of  the  United  Statse,  II,  122-123 ; 
F.  A.  Ogg,  The  Opening  of  the  Mississippi,  571;  and  Curtis  M.  Geer,  The 
Louisiana  Purcliase  and  the  Westward  Movement,  242. 

Chapter  VII,  therefore,  is  an  entirely  new  contribution  to  United  States 
history. 

2  Annals  of  Congress,  8  Cong.,  1  Sess.  (1803-1804),  106. 
slhid.,  211. 

4  Ibid.,  223.  As  might  be  inferred  from  the  personnel  of  the  committee, 
the  framing  of  this  bill  was  not  accomplished  without  considerable  difficulty. 
Senator  John  Smith  of  Ohio  wrote  to  Jefferson  that  the  committee  "have 
met  two  or  three  times  but  cannot  agree  on  the  principles  of  the  bill." 
December,  1803.  [Letter  received  December  12.]  Jefferson  Papers,  "Let- 
ters received  at  Washington,  2d  Series,"  LXXVI. 


102       Constitutional  History  of  the  Louisiana  Purchase 

two  parts,  that  north  of  the  thirty-third  parallel  to  be  called  the 
'* District  of  Louisiana/'  and  connected,  for  purposes  of  govern- 
ment, with  the  territory  of  Indiana.  The  name  ''Territory  of 
Orleans,"  was  applied  to  the  southern  area.^  For  this  region 
the  bill  provided  for  a  governor,  appointed  by  the  President  for 
a  term  of  three  years ;  a  secretary,  similarly  appointed,  for  four 
years;  and  a  legislative  council  of  thirteen  members,  appointed 
annually  by  the  President.  The  governor  was  given  power  to 
convene  and  prorogue  the  council  at  will.  The  judicial  officers 
were  to  be  appointed  by  the  President  for  a  term  of  four  years. 
The  right  of  trial  by  jury  was  granted  in  capital  cases  in  crim- 
inal prosecutions;  and  in  all  cases,  criminal  and  civil,  in  the 
superior  court,  if  either  party  required  it.  The  slave  trade  in 
the  territory  was  restricted  to  slaves  brought  from  states  of  the 
Union  by  American  citizens  going  there  to  settle,  and  who  at 
the  time  were  bona  fide  owners  of  such  slaves.  The  importation 
of  slaves  from  abroad  into  Orleans  Territory  was  prohibited, 
and  slaves  imported  since  May  1,  1798,  were  to  be  excluded 
from  the  territory.^ 

The  provisions  of  the  Breckinridge  Bill  and  of  amendments 
thereto  formed  part  of  the  programme  in  the  Senate  from 
January  10,  when  Adams  moved  the  three  resolutions  already 
noted,'^  until  February  18,  1804,  when  the  bill  passed  the  Senate. 


5  For  a  discussion  of  the  terms  territory  and  district,  see  Max  Farrand, 
"Territory  and  District,''  in  Am.  Hist.  Bev.,  V,  676-681. 

6  For  the  full  text  of  the  bill,  approved  by  Jefferson,  March  26,  1804, 
see  the  Annals  of  Congress,  8  Cong.,  1  Sess.  (1803-1804),  Appendix,  1293- 
1300;  Statutes  at  Large,  II,  283. 

The  act  of  April  7,  1798,  which  authorized  the  establishment  of  a  gov- 
ernment in  the  Mississippi  territory,  contained  a  section  forbidding  the 
introduction  into  that  territory  of  slaves  from  without  the  United  States. 
On  this  point  see  Du  Bois,  The  Suppression  of  the  African  Slave-Trade, 
88-89,  and  Appendix  B,  239.  The  act  of  1798,  together  with  the  fact  that 
it  antedated  the  reopening  of  the  foreign  slave  trade  by  South  Carolina, 
explains  the  reason  for  the  insertion  of  the  date  1798  in  the  Louisiana  bill. 

7  See  above;  also  Annals  of  Congress,  8  Cong.,  1  Sess.  (1803-1804), 
228-229;  Adams,  Writings  (Ford,  ed.),  Ill,  25-30;  Adams,  Memoirs,  I, 
286-287. 


Debate  in  Senate  on  the  Louisiana  Government  Bill     103 

Senators  Dayton,  Nicholas  and  Jackson  considered  Adams's 
resolutions  as  being  alarming  and  dangerous  in  principle ;  how- 
ever, they  did  not  point  out  any  particular  evil  that  would  result 
from  their  adoption.  Plumer  held  them  to  be  ''mere  abstract 
propositions,  not  connected  with  any  business  immediately  before 
the  Senate,"  and  declared  that  a  vote  in  favor  of  them  would 
settle  nothing.^ 

On  January  16,  Worthington  of  Ohio  moved  to  amend  the 
fourth  section,  which  made  provision  for  the  appointment  and 
powers  of  the  legislative  council,  so  as  to  authorize  that  body 
to  elect  a  delegate  to  Congress  with  the  right  to  debate  but  not 
vote.^  This  motion  gave  rise  to  an  interesting  debate  concerning 
the  status  of  the  inhabitants  of  the  ceded  territory.  Breckin- 
ridge of  Kentucky  favored  the  motion  as  a  means  of  conveying 
useful  knowledge  to  Congress.  Samuel  Smith  of  Maryland  held 
a  somewhat  similar  view.  So,  too,  'did  John  Smith  of  Ohio,  who 
considered  the  amendment  both  necessary  and  important.  Day- 
ton of  New  Jersey,  on  the  other  hand,  thought  the  legislative 
council  of  the  territory  could  better  inform  Congress  of  condi- 
tions in  the  territory  by  memorials.  Pickering  of  Massachusetts 
took  the  stand  that  since  Louisiana  was  not  incorporated  into 
the  Union,  it  would  be  absurd  to  admit  a  delegate  from  there  to 
debate  in  Congress.  Louisiana  was  a  purchased  province  and 
must  be  governed  as  such.  Opposition  came  also  from  White 
of  Delaware,  who  argued  that  since  the  legislative  council  was 
to  be  created  by  the  President  and  vested  with  the  power  of 
choosing  a  delegate  to  Congress,  this  delegate  would  be  in  reality 
the  representative  of  the  President,  an  arrangement  which  he 
denounced  as  wrong.  Bradley  of  Vermont  held  the  same  point 
of  view.     Jackson  of  Georgia  was  of  the  opinion  that  it  was 


8  Plumer,  ''Memorandum,"  Tuesday   [January]   10,  1804. 
Q  Annals  of  Congress,  8  Cong.,  1  Sess.  (1803-1804),  233. 


104       Constitutional  History  of  the  Louisiana  Purchase 

too  soon  to  allow  the  Louisianians  representation  in  Congress. 
Worthington  came  to  the  support  of  his  motion  with  the  assur- 
ance that  no  danger  could  arise  from  the  measure.  Dayton, 
again  participating  in  the  debate,  declared  the  motion  unconsti- 
tutional.   He  said: 

The  Constitution  has  provided  only  for  the  representation  of  States, 
and  no  man  will  pretend  that  Louisiana  is  a  State.  It  is  true  by  the 
confederationio  provision  was  made  for  delegates  from  territories  and  our 
Constitution  has  provided  that  all  contracts  and  engagements  entered  into 
i 6 fore  its  adoption  shall  he  valid  (Art  6th)  but  no  man  will  have  the 
hardihood  to  say  that  Louisiana  was  included  in  that  engagement. 

John  Quincy  Adams  also  sided  with  the  opposition,  owing 
to  constitutional  scruples.  Cocke  of  Tennessee  saw  no  compari- 
son between  the  government  of  Louisiana  and  other  territorial 
governments.  He  realized  that  the  Senate  was  face  to  face  with. 
a  new  problem,  an  original  system,  founded  on  new  principles, 
which  must  be  worked  out  on  its  own  merits.  He  denied  that 
the  bill  violated  the  Constitution,  and,  answering  the  argument 
that  the  people  were  ignorant,  he  claimed  that  they,  knowing 
the  necessity  of  it,  would  always  elect  worthy  representatives. 
He  expressed  his  veneration  for  these  people  because  they  lived 
in  the  west.  Breckinridge  added  his  voice  to  those  who  denied 
there  was  any  infringement  of  the  Constitution,  and  Samuel 
Smith  brought  the  debate  to  a  close  with  the  argument  that  since 
the  Constitution  did  not  prevent  the  Senate  from  admitting 
delegates  from  old  territories  he  could  see  no  power  restraining 
that  body  from  allowing  Louisiana  to  send  a  delegate  to  the 
other  House.^^  The  motion  failed  by  a  vote  of  eighteen  nays  to 
twelve  yeas.^^ 


10  By  the  Ordinance  of  1787,  sec.  12. 

11  Plumer,  "Memorandum,"  Monday,  January  16.  Compare  the  state- 
ment in  John  Quincy  Adams,  Memoirs,  1,  290,  under  the  same  date:  ''The 
Louisiana  Government  bill  was  further  discussed ;  but  no  decision  had. ' ' 

12  Annals  of  Congress,  8  Cong.,  1  Sess.  (1803-1804),  233-234.  The 
liberal  tendencies  of  the  West  are  seen  in  the  vote  on  this  measure.     With 


Debate  in  Senate  on  the  Lauisiana  Government  Bill    105 

Mere  abstract  theory  of  government  played  little  part  in  this 
debate.  The  principal  grounds  of  argument  were  those  of  con- 
stitutional restrictions  and  of  expediency. 

The  doctrine  that  territories  must  pass  through  varying 
stages  of  progress  before  definite  privileges  were  granted  to  them 
is  here  applied  to  newly  acquired  foreign  territory  as  well  as 
to  that  originally  held.  This  was  true  not  only  of  the  one  ques- 
tion already  discussed;  it  can  be  traced  throughout  the  entire 
debate.  On  the  very  next  day  following  the  refusal  to  grant  a 
delegate  in  Congress  to  Louisiana,  a  motion  to  extend  to  that 
country  the  trial  by  jury  in  all  criminal  cases  was  defeated.^^ 

The  Breckinridge  Bill  was  debated  on  January  18^*  and  on 
January  23.  On  the  latter  day  a  difference  of  opinion  was 
manifest  as  to  how  much  of  the  operative  part  of  our  political 
institutions  could  be  carried  into  direct  effect  in  the  new  country, 
and  as  to  the  mode  by  which  the  spirit  and  principles  of  these 
institutions  could  be  most  effectually  introduced.  The  immedi- 
ate cause  of  debate  was  a  motion  to  strike  out  a  part  of  what 
related  to  the  legislative  council.  It  was  urged,  on  the  one 
side,  that  the  legislative  council  ought  to  be  chosen  by  the  gov- 
ernor from  certain  qualified  settlers  of  the  different  parts  of 
the  country,  men  who  should  be  able  to  give  information  con- 


the  exception  of  John  Brown  of  Kentucky  the  western  states  voted  solidly 
in  favor  of  allowing  the  Louisianians  a  delegate  in  Congress.  Those  voting 
aye  were  Anderson  and  Cocke  of  Tennessee,  Breckinridge  of  Kentucky, 
John  Smith  and  Worthington  of  Ohio,  Ellery  and  Potter  of  Ehode  Island, 
Logan  of  Pennsylvania,  Israel  Smith  of  Vermont,  Samuel  Smith  of  Mary- 
land, and  Nicholas  and  Venable  of  Virginia.  The  nays  were  Adams  and 
Pickering  of  Massachusetts,  Armstrong  of  New  York,  Baldwin  and  Jackson 
of  Georgia,  Bradley  of  Vermont,  Brown  of  Kentucky,  Condit  and  Dayton 
of  New  Jersey,  Franklin  and  Stone  of  North  Carolina,  Hillhouse  and 
Tracy  of  Connecticut,  Maclay  of  Pennsylvania,  Olcott  and  Plumer  of  New 
Hampshire,  and  Wells  and  White  of  Delaware. 

T-^  Annals  of  Congress,  8  Cong.,  1  Sess.  (1803-1804),  235.  Plumer  does 
not  report  the  debate  on  this  motion,  nor  does  John  Quincy  Adams  (Memoirs, 
1,  290).  The  bill  limited  trial  by  jury  in  criminal  cases  to  those  which  were 
capital. 

i^Aniials  of  Congress,  8  Cong.,  1  Sess.  (1803-1804),  236. 


106       Const  it  utioTial  History  of  the  Louisiana  Purchase 

cerning  their  respective  sections.  The  governor,  having  power 
to  dissolve  this  council  at  discretion,  could  check  factious  dispo- 
sitions; while,  since  the  members  were  to  be  chosen  annually  by 
the  governor,  who  was  responsible  for  their  choice,  no  injury 
could  arise.  Information  could  be  acquired  on  the  state  of  things 
and  the  representative  element  of  our  government  be  introduced 
gradually  and  progressively.  This  mode  of  procedure  was  con- 
sidered necessary  and  expedient,  on  the  one  hand,  because  of 
lack  of  information  on  the  part  of  Congress  of  the  local  con- 
ditions, and  on  the  other,  from  the  attitude  of  mind  of  the 
inhabitants  due  to  long  subjection  to  a  form  of  government  very 
different  from  our  own.  If  elections  were  held,  there  was  a 
danger  that  persons  would  be  elected  who  did  not  know  our 
language  and  who,  from  want  of  necessary  information  in  our 
principles  of  government,  would  be  incapable  of  proceeding 
with  legislation. 

Those  favoring  the  extension  of  legislative  rights  to  the 
Louisianians  contended  that  capable  men  could  be  found  in 
every  district.  Furthermore,  admitting  the  people  of  Louisiana 
to  be  "next  to  a  state  of  nature,"  it  was  inconsistent  with  the 
third  article  of  the  treaty  to  allow  them  to  remain  so.  Having 
guaranteed  to  them  in  due  time  equal  rights  and  laws  with 
ourselves,  the  first  step  in  effecting  that  extension  of  civil  and 
political  liberty  to  them  was  to  grant  the  election  of  a  legislative 
council.  Not  to  grant  this  would  be  perpetuating  ignorance, 
that  "great  source  of  human  enslavement."  It  would  be  better 
to  allow  them  to  experiment  while  their  numbers  were  few  rather 
than  wait  until  more  numerous  settlers  would  render  errors 
arising  from  ignorance  extensive  and  dangerous.  The  theory 
of  free  government  appeared  in  the  statement : 

That  we  best  understood  what  is  fit  and  what  will  be  good  or  acceptable 
in  the  eyes  of  others  by  placing  ourselves  in  their  situation  and  that  if  we 
were  in  their  situation  now  we  should  hardly  complain  or  object   to  the 


Debate  in  Seriate  on  the  Louisiana  Government  Bill     107 

conduct  of  those  who  should  proffer  to  us  the  same  means  of  happiness, 
freedom  and  prosperity  which  had  rendered  our  benefactors  the  admiration 
of  mankind.15 

On  January  24,  an  amendment  was  offered  authorizing  the 
governor  to  divide  the  territory  into  twenty-four  districts,  in 
each  of  which  the  resident  householders  were  to  elect  annually 
two  properly  qualified  persons,  from  whom  the  governor  was  to 
select  twenty-four,  one  from  each  district,  to  form  a  legislative 
council.^^  Jackson  declared  that  the  inhabitants  of  Louisiana 
were  not  citizens  of  the  United  States;  they  were  in  a  state  of 
probation  and  were  as  yet  too  ignorant  to  elect  a  legislature. 
This  view  received  the  support  of  Samuel  Smith,  Nicholas  and 
Pickering,  who  considered  the  people  absolutely  incapable  of 
governing  themselves,  of  electing  their  rulers,  or  of  appointing 
jurors.  They  would  be  in  favor  of  granting  a  free  government 
as  soon  as  the  people  were  ready  for  it.  Maclay  of  Pennsylvania 
favored  the  amendment,  as  did  Cocke,  who  opposed  the  original 
bill  as  tyrannical.  Anderson  was  surprised  that  the  third  article 
of  the  treaty  had  been  lost  sight  of.  To  him  the  original  bill 
had  not ' '  a  single  feature  of  our  government  in  it — it  is  a  system 
of  tyranny,  destructive  of  elective  rights.  We  are  bound  by 
treaty,  and  must  give  that  people,  a  free  elective  government." 

The  proposal  of  an  amendment  to  extend  to  the  new  territory 
the  act  of  February  28,  1803,  forbidding  importation  of  slaves 
into  states  which  prohibited  their  importation,^^  brought  forth 
the  remark  from  Jackson  that  ''slaves  must  be  admitted  into 


"^^  Aurora,  January  27,  1804.  The  correspondent's  communication  is 
dated  Washington,  January  23.  Curiously  enough,  this  was  the  only 
lengthy  newspaper  report  on  any  part  of  the  debate  which  the  writer  was 
able  to  find.  The  Aurora  correspondent  contented  himself  the  next  day, 
January  24,  with  a  brief  statement  to  the  effect  that  the  debate  in  the 
Senate  was  continued  along  much  the  same  lines  as  the  day  before.  See 
the  Aurora  for  January  28. 

^^  Annals  of  Congress,  8  Cong.,  1  Sess.   (1803-1804),  238-239. 

^1  lUd.,  7  Cong.,  2  Sess.  (1802-1803),  Appendix,  1564-1565. 


108       Constituticmal  History  of  the  Louisiana  Purchase 

that  territory;  it  cannot  be  cultivated  without  them."  This 
assertion  opened  the  way  for  a  heated  discussion  of  slavery  and 
the  slave-trade  which  became  the  central  theme  of  the  debate 
until  the  final  passage  of  the  bill.  Nearly  all  the  arguments  for 
and  against  the  institution  of  slavery  which  were  to  become 
so  familiar  in  the  years  to  follow,  were  advanced.  The  light 
thrown  by  Plumer  on  the  position  of  the  Senate  on  this  question 
is  one  of  the  most  important  of  his  contributions  to  our  knowl- 
edge of  current  congressional  action. 

The  statement  of  a  Georgia  man,  Jackson,  was  immediately 
attacked  by  other  Southerners,  Franklin  of  North  Carolina  and 
Breckinridge  of  Kentucky,  both  of  whom  declared  themselves 
opposed  to  slavery.  Breckinridge  expressed  the  hope  that  the 
time  was  ''not  far  distant  when  not  a  slave  will  exist  in  the 
Union."  He  feared  a  slave  uprising  similar  to  that  which 
had  occurred  in  San  Domingo.^^ 

Slavery  had  not  yet  divided  the  country  along  geographical 
lines,  although  such  a  division  was  hinted  at  during  this  debate.^® 
Dayton,  senator  from  New  Jersey  and  a  native  of  that  state,  took 
upon  himself  the  defense  of  slavery  on  the  ground  that  the  newly 
acquired  territory  would  never  be  inhabited  unless  slavery  should 
be  permitted  there.  White  men  could  not  bear  the  burning  sun 
and  damp  dews  of  that  country.  Dayton  based  his  statement 
on  first-hand  evidence,  having  traveled  over  a  large  part  of 
Louisiana.  He  was  opposed,  also,  to  limiting  the  trade  in  slaves 
to  the  states  of  the  Union,  for  this  would  lead  the  slave  •  dealers 
of  the  United  States  to  collect  and  ship  into  the  new  territory 
the  worst  type  of  slaves. 

Dayton,  however,  was  not  the  only  senator  who  possessed 
first-hand  knowledge  of  Louisiana.     John  Smith  of  Ohio  had 


18  Frequent  reference  to  this  slave  revolt  shows  how  deep  an  impression 
was  made  by  it  on  the  minds  of  the  people  of  the  South.  See  Du  Bois, 
The  Suppression  of  the  African  Slave-Trade,  70-93. 

19  See  the  speech  of  Hillhouse,  p.  112. 


Debate  in  Senate  on  the  Louisiana  Government  Bill     109 

spent  considerable  time  there.  He  did  not  agree  with  Dayton 
and  maintained  that  white  men  could  cultivate  that  land.  Slaves 
introduced  from  foreign  countries  would  soon  become  so  numer- 
ous as  to  endanger  the  government  and  ruin  the  new  country. 
He,  however,  favored  the  admission  of  slaves  from  the  states. 
This  would  be  the  means  of  scattering  the  negroes  more  equally 
through  states  and  territories  and  thus  check  their  power.  He 
professed  his  admiration  of  the  policy  of  New  England  in  exclud- 
ing slavery,  and  thanked  God  there  were  no  slaves  in  Ohio.^^ 

Franklin  asserted  gravely  that,  ''Slavery  is  in  every  respect 
an  evil  to  the  States  in  the  south  and  in  the  west ;  it  will,  I  fear, 
soon  become  a  dreadful  one. ' '  The  great  danger,  however,  arose 
from  negro  insurrections.  In  support  of  his  contention  he 
pointed  to  the  laws  of  Virginia  and  North  Carolina,  made  for 
the  purpose  of  guarding  against  and  suppressing  these  rebel- 
lions.^^ 

The  debate  on  the  slave  trade  was  resumed  the  next  day. 
Bradley  of  Vermont  was  in  favor  of  permitting  slavery  in  Louis- 
iana because  this  right  was  claimed  by  the  inhabitants  and  was 
made  binding  on  the  United  States  by  the  treaty.  He  preferred, 
however,  to  omit  entirely  the  slave  question  from  the  bill.^^ 
Hillhouse  pointed  to  the  great  increase  in  the  number  of  negroes 
in  the  United  States — nearly  two  hundred  thousand  for  the  ten 
years  ending  with  the  last  census.  He  regarded  slavery  as  a 
serious  evil  and  desired  to  check  it  wherever  possible.  An 
increase  in  the  number  of  slaves  in  Louisiana  would  necessitate 


20  The  words  slavery  and  slave  trade  are  used  rather  loosely  by  Plumer 
and  sometimes  lead  to  obscurity  of  meaning  although,  as  a  rule,  it  is  not 
difficult  to  ascertain  from  the  context  which  is  meant. 

21  Plumer,  ' '  Memorandum, ' '  Tuesday,  January  24.  Cf .  John  Quincy 
Adams,  Memoirs,  I,  292,  under  the  same  date:  ''The  amendments  to  the 
Louisiana  Government  bill  were  taken  up,  and  some  progress  made  in  them. 
Mr.  Venable's  amendment,  to  give  them  the  beginning  of  a  popular  repre- 
sentation, failed  for  want  of  one  vote.  Yeas  fourteen,  nays  fourteen.  On 
the  section  prohibiting  the  slave  trade,  no  question  was  taken. 

22  gee  Adams's  comments  on  Bradley's  action,  p.  110. 


110       Constitutionul  History  of  the  Louisiana  Purchase 

the  maintenance  of  a  standing  army  to  protect  the  people  against 
insurrections.  In  conclusion,  he  said  that  if  the  new  country 
could  not  be  cultivated  without  slaves  it  would  prove  a  curse  to 
the  United  States,  particularly  to  some  of  the  states  nearest  it. 

Bradley  favored  the  establishment  of  a  general,  not  a  par- 
ticular form  of  government.  He  cited  the  government  of  the 
District  of  Columbia  as  proof  of  the  fact  that  Congress  was 
incompetent  to  deal  with  particulars. 

Adams  held  slavery  in  a  moral  sense  to  be  an  evil,  but  as 
connected  with  commerce  it  had  important  uses.  Considering 
that  the  regulations  offered  to  prevent  slavery  were  insufficient, 
he  announced  his  intention  of  voting  against  them.  Dayton 
repeated  his  argument  of  the  previous  day  that  negro  slave  labor 
was  necessary  for  the  cultivation  of  the  soil  of  Louisiana. 
Keverting  to  other  sections  of  the  bill,  he  declared  that  an  elec- 
tive government  and  trial  by  jury  would  be  a  curse  to  the  people, 
but  that  slavery  was  essential  to  their  existence. 

Hillhouse  and  John  Smith  both  took  exception  to  Dayton's 
remarks.  The  former  claimed  that  the  Constitution  permitted 
a  republican  government  and  no  other.  ''We  must,"  he  said, 
''apply  the  Constitution  to  that  people  in  all  cases  or  in  none. 
We  must  consider  that  country  as  being  within  the  Union  or 
without  it — there  is  no  alternative.  I  think  myself  they  are  not 
a  part  or  parcel  of  the  United  States. "^^  Smith's  opposition 
was  simply  a  reiteration  of  his  earlier  statement  that  negroes 
were  not  necessary  for  the  tillage  of  the  soil;  white  men  could 
cultivate  it.  He,  too,  emphasized  the  dangers  and  horrors  of 
negro  rebellions,  and  again  referred  to  the  one  in  San  Domingo. 

23  The  division  of  opinion  on  this  point  has  continued  to  the  present 
day.  One  needs  only  to  examine  the  magazines  and  newspapers  of  the 
period  immediately  following  the  acquisition  of  our  insular  possessions  to 
see  how  live  an  issue  this  still  is  among  students  of  political  science  and 
constitutional  history.  The  Insular  Decisions  of  the  Supreme  Court  throw 
further  light  on  the  controversy.  It  has  played  a  prominent  part  in  the 
discussions  following  each  new  acquisition  of  territory.  The  importance 
of  Louisiana  as  a  precedent  is  once  more  emphasized. 


Debate  in  Senate  on  the  Louisiana  Government  Bill     111 

Jackson,  arguing  from  experience  as  a  Georgia  rice-planter, 
held  that  slavery  was  necessary.  To  exclude  slaves  would  de- 
preciate the  value  of  lands  in  Louisiana  fifty  per  cent.  The 
third  article  of  the  treaty,  according  to  his  interpretation,  for- 
bade the  exclusion.  Full  of  serious  portent  for  the  future, 
tinged  with  what  might  be  well  called  the  ''higher  law,"  was 
his  statement :  ' '  You  cannot  prevent  slavery — neither  laws 
moral  or  human  can  do  it.  Men  will  be  governed  by  their  inter- 
est, not  the  law." 

Opposition  to  the  extension  of  .slavery  in  the  west  was  voiced 
by  Anderson  of  Tennessee.  In  his  opinion  its  spread  into  Louis- 
iana would  prove  a  curse  to  the  west. 

The  bitterness  aroused  by  the  debate,  a  bitterness  which  was 
to  grow  until  the  ties  of  union  were  broken  by  southern  secession, 
did  not  escape  men  at  the  time  and  called  forth  the  grave 
remark  from  White  of  Delaware :  "  I  think  it  unfortunate  that 
whenever  this  question  is  stirred,  feelings  are  excited  that  are 
calculated  to  lead  us  astray."  It  was  his  hope  that  Congress 
would  use  every  means  within  its  power  to  prevent  "this  dis- 
graceful traffick  in  human  flesh."  Nothing  in  the  treaty  guar- 
anteed to  the  people  of  Louisiana  the  power,  much  less  right,  of 
holding  slaves.  He  inquired  whether  the  statement  that  Louis- 
iana could  not  be  cultivated  by  white  men  did  not  rise  from 
the  fact  of  their  having  slaves.  He  believed  white  men  could 
accustom  themselves  to  the  fatigue  of  labor  in  that  climate.  In 
conclusion  he  put  forth  an  argument  for  free  white  labor  which 
was  to  be  used  many  times  afterwards,  and  one  which  the  south- 
ern planters  were  unwilling  to  admit: 

Examine  the  state  of  this  Union.  In  the  Eastern  States  where  slavery 
is  not  suffered,  their  lands  are  highly  cultivated,  their  buildings  neat,  use- 
ful and  elegant,  and  the  people  are  strong,  powerful  and  wealthy.  But  as 
you  travel  south,  the  instant  you  arrive  to  where  slavery  is,  you  find  the 
lands  uncultivated,  the  buildings  decaying  and  falling  into  ruins  and  the 
people,  poor,  weak,  and  feeble.  This  is  not  the  effect  of  the  climate,  for  our 
southern  climates  are  more  favorable  than  the  eastern  and  northern. 


112       Constitutional  History  of  the  Louisiana  Purchase 

Bradley  had  a  hard  time  making  his  attitude  clearly  under- 
stood. Opposed  to  slavery  in  the  ''eastern  states,"  he  declared 
his  intention  of  voting  against  the  measure  under  consideration 
because  it  admitted  of  the  principle  of  slavery.  Hillhouse 
pointed  out  that  this  stand,  if  adhered  to,  would  throw  open  the 
new  territory  to  slaves  imported  directly  from  Africa,  whereas 
support  of  the  bill  would  limit  the  traffic  to  the  United  States. 

Samuel  Smith  of  Maryland  claimed  a  constitutional  right 
to  prohibit  slavery  in  Louisiana  but  doubted  the  wisdom  of 
exercising  it.  Israel  Smith  of  Vermont  considered  the  provision 
proposed  to  be  insufficient ;  it  would  increase  rather  than  prevent 
slavery.  Although  opposed  to  the  slave  trade,  he  did  not  think 
Congress  could  prohibit  it  effectually  until  1808.  Many  slaves 
existed  in  Louisiana  and  the  change  proposed  would  be  too  sud- 
den. It  would  encourage  South  Carolina  to  import  slaves.  He 
was  against  present  action  in  the  matter.^* 

No  vote  was  taken  and  the  debate  was  continued  on  the  next 
day.  Hillhouse,  in  introducing  a  new  amendment  to  the  pro- 
vision concerning  slavery,  denied  the  accusation  that  he  was 
unfriendly  to  the  new  territory,  and  that  he  was  bringing  in 
measures  merely  to  embarrass  the  Administration,  and  asserted 
his  sincere  desire  to  promote  the  interests  of  the  Union.  He  then 
uttered  a  remark  fraught  with  significant  meaning : 

It  has  been  said  on  this  floor  that  I  am  an  Eastern  man.  I  am  so,  but 
while  I  am  the  representative  of  a  State  which  is  yet  a  member  of  the 


24Plumer,  ''Memorandum,"  Wednesday,  January  25.  Cf.  John  Quincy 
Adams,  Memoirs,  I,  292:  ''In  Senate  the  debate  continued  all  day  upon 
the  question  of  the  admission  of  slaves  into  Louisiana.  Mr.  Hillhouse  is 
to  prepare  a  section  to  the  same  effect,  but  differently  modified."  Men- 
tion of  the  debate  is  made  in  the  Aurora,  January  30,  and  in  the  Federal 
Gazette  ^  Baltimore  Daily  Advertiser,  February  1,  dated  from  Washington, 
January  25. 

South  Carolina  had,  by  successive  amendments,  from  1787  to  1803, 
forbidden  the  importation  of  slaves,  but  the  trade  had  been  reopened  by 
the  repeal  of  these  laws,  December  17,  1803.  For  statistics  on  the  number 
of  slaves  imported  into  Charleston  after  December,  1803,  see  DuBois,  The 
Suppression  of  the  African  Slave  Trade,  90-91. 


Debate  in  Senate  on  the  Louisiana  Government  Bill     113 

Union,  I  hope  I  shall  have  as  much  influence  as  if  I  was  a  Southern  man. 
I  did  not  expect  so  soon  to  hear  on  this  floor  the  distinction  of  eastern  and 
northern,  and  southern,  men.  Has  it  indeed  come  to  this — are  we  to  be 
designated  by  a  geographical  line! 

Hillhouse's  amendment  declared  it  unlawful  for  anyone  to 
import,  or  assist  in  importing,  any  slaves  into  Louisiana  from 
without  the  United  States.  Persons  convicted  of  this  offense 
were  to  be  fined,  and  the  slaves  freed.^^ 

The  attack  on  the  amendment  was  begun  by  Jackson,  who 
still  insisted  that  unless  slavery  were  established  in  that  country 
the  territory  must  be  abandoned.  Personal  interest  inclined  him 
to  favor  the  prohibition  of  slavery  in  Louisiana  because  this 
would  prevent  its  settlement  and  thereby  raise  the  value  of 
estates  in  Georgia.  Duty,  he  said,  outweighed  personal  or  state 
interest.  Like  many  other  Southerners  of  his  day,  Jackson  be- 
lieved it  would  be  for  the  interest  of  the  United  States  to  end 
slavery  altogether,  but  this  could  not  be  done.  Reverting  to 
familiar  arguments,  he  said  that  although  he  disliked  the  traffic 
in  human  flesh,  the  decision  must  be  made  not  on  the  morality 
but  the  policy  of  the  case.  Furthermore,  it  was  an  improper 
time  to  prohibit  the  importation  of  slaves  into  Louisiana,  our 
government  not  yet  being  established  there.  Anticipating  the 
later  ''popular  sovereignty"  doctrine,  Jackson  said:  ''Let  those 
people  judge  for  themselves — the  treaty  is  obligatory  upon  us." 

The.  treaty  obligation  was  emphasized  by  Dayton,  who  main- 
tained that  the  faith  of  the  nation  was  pledged,  by  treaty,  that 
the  rights  of  the  Louisianians  should  be  secured  to  them :  one  of 
their  rights  was  slavery. 

Both  the  doctrine  of  "popular  sovereignty"  and  the  rights 
under  the  treaty  were  to  rise  again  and  again  to  plague  the 
Government  until  their  settlement  became  issues  of  the  Civil 
War. 


25  Annals  of  Congress,  8  Cong.,  1  Sess.   (1803-1804),  240. 


114       Constitutional  History  of  the  Louisiana  Purchase 

Not  all  of  the  senators  agreed  with  Jackson  and  Dayton  as 
*  to  the  treaty  obligations.  The  right,  under  the  treaty,  to  hold 
slaves  was  denied  by  Breckinridge,  himself  a  Southerner.  Much 
less,  according  to  him,  did  the  treaty  pledge  the  faith  of  the 
Union  to  support  the  slave  traffic.  Alarmed  at  the  increase  of 
slaves  in  the  southern  states,  he,  considering  slavery  an  evil, 
desired  to  confine  it  within  as  small  a  compass  as  possible. 

Some  of  the  senators  felt  uncomfortable  because  of  the  stand 
they  felt  forced  to  take  on  the  question  before  the  Senate.  Brad- 
ley opposed  the  amendment  as  insufficient.  Desirous  of  abolish- 
ing slavery  completely,  he  did  not  think  the  proper  time  had 
come.  He  wished  nothing  at  all  to  be  done  on  the  subject.  Sam- 
uel Smith  found  himself  in  similar  difficulties.  He  stated  his 
intention  of  voting  against  the  amendment,  although  he  wished 
it  understood  that  he  was  opposed  to  slavery.  On  the  other 
hand  there  were  those  in  the  Senate  who  were  willing  to  vote 
for  what  could  be  obtained.  Franklin  was  of  this  group.  His 
wish  was  to  exclude  all  slaves  from  the  territory  except  those 
carried  by  actual  settlers  from  the  United  States,  but  despairing 
of  a  vote  in  the  Senate  which  would  accomplish  this  exclusion, 
he  was  willing  to  vote  for  such  a  prohibition  as  he  could  get. 
With  regard  to  all  foreign  importation  of  slaves,  Franklin  ex- 
pressed his  willingness  to  send  a  frigate  to  Charleston  to  prevent 
the  landing  of  slaves  from  Africa,  and  ^^ frittering  those  nefar- 
ious traders  to  pieces.'^ 

Jackson  again  asserted  that  human  power  and  invention 
could  not  prevent  the  importation  of  slaves;  that  it  was  vain  to 
make  laws  on  the  subject.  Slaves  directly  from  Africa  were 
preferable  to  those  who  had  been  long  in  this  country,  or  born 
here.  He  was  sorry  the  constitution  of  Georgia  probihitod  the 
slave  trade. ^"^     Jackson's  idea  of  the  futility  of  laws  on  the 


26  Constitution  of  Georgia,  1798,  Art.  IV,  se<?t.  11,  Thorpe,  Federal  and 
State  Constitutions,  II,  801. 


Debate  in  Senate  on  the  Louisiana  Government  Bill     115 

subject  was  shared  by  a  New  Englander,  Israel  Smith  of  Ver- 
mont. Although  opposed  to  slavery,  Smith  considered  as  useless 
all  laws  made  to  prevent  it.  Such  legislation  would  be  as  futile 
as  an  attempt  to  prevent  by  law  the  use  of  cider  in  New  England. 
No  effective  law  against  the  slave  trade,  he  argued,  could  be 
carried  into  effect  until  1808.  South  Carolina  was  within  her 
rights  in  importing  slaves  from  Africa.  Any  laws  passed  at  the 
present  time  would  give  encouragement  to  the  states  in  1808  to 
resist  laws  which  might  then  constitutionally  be  made  to  abolish 
the  slave  trade.  He  hoped  nothing  would  now  be  done  on  the 
matter. 

Jackson  attempted  to  prevent  a  vote  on  the  provision  by 
moving  an  adjournment,  which  was  refused.  He  considered  it 
to  be  unfair  for  a  majority  to  press  the  subject.  The  question 
was  taken  on  the  amendment  and  passed  in  the  affirmative, 
twenty-one  to  six.^^ 


27  Plumer,  ' '  Memorandum, ' '  Thursday,  January  26.  For  the  text  of 
the  amendment  under  discussion,  and  the  vote  thereon,  see  Animls  of  Con- 
gress, 8  Cong.,  1  Sess.  (1803-1804),  240-41.  John  Quincy  Adams  in  his 
Memoirs,  I,  292-293,  under  date  of  January  26,  says: 

''The  section  for  prohibiting  the  admission  of  slaves  from  abroad  into 
Louisiana  was  again  debated  all  day.  It  was  at  last  taken  by  yeas  and 
nays — seventeen  to  six.  [An  error.  Compare  the  vote  in  the  Annals. — 
E.  S.  B.]  The  discussion  of  this  question  has  developed  characters.  Jack- 
son has  opposed  the  section  totis  viribus,  in  all  its  shapes,  and  was  very 
angry  when  the  question  was  taken — called  twice  for  an  adjournment,  in 
which  they  would  not  indulge  him,  and  complained  of  unfairness.  Dayton 
has  opposed  the  section  throughout  with  equal  vehemence,  but  happened 
to  be  absent  when  the  question  was  taken.  Smith,  of  Maryland,  who  has 
been  all  along  extremely  averse  to  the  section,  but  afraid  to  avow  it,  com- 
plained bitterly  that  the  yeas  and  nays  were  taken  in  quasi  committee, 
instead  of  waiting  to  take  them  on  the  ultimate  question  in  the  Senate. 
But,  finding  his  party  on  this  point  stiff  to  him  as  if  he  was  in  the  minority, 
he  left  his  seat,  to  avoid  voting  at  all,  in  the  yeas  and  nays.  Bradley,  of 
Vermont,  after  trying  various  expedients  to  give  the  slip  to  the  real  ques- 
tion, finally  moved  an  amendment  to  prohibit  the  admission  of  slaves 
altogether,  as  well  from  the  United  States  as  from  abroad.  The  object 
was  to  defeat  the  thing  by  its  own  excess,  and  made  his  abhorrence  of  all 
slavery  the  ground  of  his  argument  to  oppose  the  partial  prohibition.  He 
therefore  took  the  yeas  and  nays  upon  his  own  proposed  amendment  before 
they  were  taken  on  Mr.  Hillhouse's  section.  The  workings  of  this  question 
upon  the  minds  and  hearts  of  these  men  opened  them  to  observation  as  much 
as  if  they  had  had  the  window  in  the  breast." 


116       Constitutional  History  of  the  Louisiana  Purchase 

The  slavery  issue  with  respect  to  Louisiana  was  by  no  means 
settled.  On  Monday,  January  30,  Senator  Hillhouse  moved  an 
amendment  to  the  Louisiana  Bill,  providing  that  no  person 
brought  into  the  territory  from  any  state  or  territory  of  the 
Union  or  from  any  territory  in  America  belonging  to  any  foreign 
Prince  or  State  after  a  day  to  be  decided  could  be  held  by  law 
to  serve  for  more  than  one  year  after  reaching  the  age  of  twenty- 
one  years  for  males  and  eighteen  for  females,  unless  bound  by 
their  own  voluntary  act  after  reaching  that  age,  or  bound  by 
law  for  the  payment  of  debts,  damages,  fines  or  costs.  It  was 
also  provided  that  this  act  should  not  affect  fugitives  from  other 
states  or  territories,  who  must  be  delivered  up  in  the  manner 
prescribed  by  law.^^ 

Practically  no  discussion  of  this  amendment  is  reported,  brief 
remarks  in  favor  of  it  by  Hillhouse  and  Bradley  alone  being 
noted.    The  measure  was  rejected.^^ 

Hillhouse  promptly  offered  another  amendment,  the  first 
part  of  which  made  it  unlawful  for  any  person  to  import  into 
the  territory,  from  any  place  within  the  limits  of  the  United 
States,  or  to  assist  in  importing,  any  slaves  brought  since  [blank] 
date  into  any  part  of  the  limits  of  the  United  States,  from  any 
place  outside  those  limits.  If  convicted  of  such  an  offense  in 
any  competent  court  of  the  territory,  the  offender  was  liable  to 
fine.^*^ 

Dayton  pointed  to  the  fact  that  South  Carolina  had  a  con- 
stitutional right,  which  she  was  exercising,  to  import  slaves 
from  Africa,  and  the  proposed  amendment  would  impair  that 
right.  Hillhouse  admitted  this,  adding  that  it  would  do  so  justly. 
Jackson  touched  on  one  of  the  real  difficulties  in  any  settlement 
of  the  slavery  question  when  he  said  it  was  unfortunate  that 

28  Annals  of  Congress,  8  Cong.,  1  Sess.  (1803-1804),  241-242. 

29  Plumer,  ''Memorandum,"  Monday,  January  30.  For  the  vote  see 
Annals  of  Congress,  8  Cong.,  1  Sess.   (1803-1804),  242. 

so  Annals  of  Congress,  8  Cong.,  1  Sess.   (1803-1804),  242. 


Debate  in  Setiate  on  the  Louisiana  Government  Bill     117 

slaves  were  owned,  but  having  them  it  was  unsafe  to  free  them. 
He  said  that  a  very  few  negroes  would  revolutionize  Louisiana. 
Georgia  had  prohibited  the  manumission  of  slaves.^^  He  ex- 
pressed his  willingness  to  join  in  exporting  all  the  slaves. 

The  difficulty  of  finding  a  solution  to  the  slave  problem  was 
apparent  to  all.  The  danger  of  a  sudden,  general  manumission 
could  not  be  overlooked ;  nor  was  it,  even  by  the  very  man  who 
by  his  many  amendments  showed  his  desire  to  check  the  growth 
of  slavery.  Hillhouse  held  to  his  opinion  that  slavery  was  a 
real  evil,  but  he  was  not  in  favor  of  freeing  all  the  slaves  at 
once;  slavery  must  be  extinguished  by  degrees.  Adams  stated 
his  opposition  to  slavery  but  added  that  he  had  voted  against  the 
provisions  to  prohibit  and  lessen  it.  His  reasons  for  so  doing 
were  those  advanced  in  his  amendments  proposed  January  10; 
namely,  that  he  was  opposed  to  legislating  at  all  for  Louisiana; 
and  that  the  Senate  was  proceeding  with  too  much  haste  on 
such  an  important  question.^^ 

The  first  division  of  the  amendment  was  adopted,  but  the 
second  part  was  postponed  until  the  next  day.^^  By  this  second 
division  it  was  provided  that  no  slaves  should  be  introduced  into 


31  A  Georgia  act  of  1801  made  manumission  illegal  unless  accompanied 
by  act  of  the  legislature. 

32  Plumer,  ' '  Memorandum, ' '  Monday,  January  30.  Cf .  John  Quincy 
Adams,  Memoirs,  I,  293,  for  same  date,  where  merely  a  brief  note  of  the 
continuance  of  the  discussion  is  mentioned.  The  National  Intelligencer 
and  Washington  Advertiser,  the  Administration  paper,  under  date  of  Jan- 
uary 30,  has  the  following  to  say:  ''The  Senate  have,  for  some  days  past, 
been  engaged  on  the  bill  for  the  government  of  Louisiana.  After  a  debate 
of  considerable  length,  it  has  been  decided — yeas  22 — nays  7 — to  prohibit 
the  importation  into  Louisiana  of  slaves  from  all  foreign  countries.  We 
flatter  ourselves  that  this  important  principle  will  be  confirmed  by  the 
ultimate  vote  of  the  two  Houses,  and  that  Congress  will  thereby  evince 
an  unabating  spirit  to  exert  every  legitimate  power,  with  which  they  are 
invested,  to  rescue  the  national  character  from  its  greatest  degradation,  and 
save  the  people  they  represent  from  the  deepest  evils  which  futurity  might 
otherwise  have  in  store  for  them."  The  same  statement  appears  in  the 
Federal  Gazette  4"  Baltimore  Daily  Advertiser,  Wednesday,  February  1, 
1804. 

^^  Annals  of  Congress,  8  Cong.,  1  Sess.   (1803-1804),  242. 


118       Constitutional  History  of  the  Louisiana  Purchase 

the  territory  except  by  persons  removing  thence  for  actual  settle- 
ment, and  being,  at  the  time  of  removal,  hon^  fide  owners  of  such 
slaves.  The  penalty  for  violation  of  this  regulation  was  freedom 
for  the  slaves.^*  An  attempt  to  strike  out  this  section  and  insert 
another  proposed  by  Breckinridge  was  defeated,^^  but  not  until 
the  matter  had  been  debated  '^warmly,"  to  use  the  phrase  of 
Adams.^®  Something  of  the  warmth  of  the  discussion  is  to  be 
seen  in  Plumer's  report  of  it.  Much  was  repetition  of  what  had 
already  been  said,  and  yet  there  were  sufficient  new  phases  of 
the  question  laid  open  and  old  phases  emphasized  in  new  ways 
to  make  an  examination  of  the  debate  exceedingly  profitable. 
The  depth  of  the  problem  was  voiced  by  Samuel  Smith : 

When  the  prohibition  of  slavery  was  first  introduced  into  the  bill  I  was 
much  alarmed.  I  foresaw  it  would  take  up  time — that  it  would  create 
alarm  and  even  endanger  the  peace  and  security  of  these  States  holding 
slaves — especially  when  the  subject  is  debated  in  the  other  House — and 
those  debates  published  in  the  newspapers.37  God  knows  that  I  am  not 
friendly  to  slavery,  although  I  own  slaves  and  live  in  a  state  where  slavery 
is  established  by  law.  I  am  unwilling  to  think  much  less  to  speak  on  this 
subject. 

Smith  here  voiced  an  attitude  toward  the  slave  question 
which  became  all  too  common  at  a  later  date.  The  absolute 
impossibility  of  avoiding  the  topic  in  this  manner  was  recognized 
by  another  Southerner,  franklin  of  North  Carolina,  in  the  fol- 
lowing words:  ''We  cannot  wink  this  subject  out  of  sight — if  we 
leave  it,  it  will  follow  us."  Legislation  on  this  question  he 
considered  imperative.  The  evil  of  slavery  was  felt  in  North 
Carolina;  yet  while  Franklin  was  in  favor  of  restraining  for- 
eign importation,  he  did  not  wish  to  go  further.     Breckinridge 


34  Jr>wa?s  of  Congress,  8  Cong.,  1  Sess.  (1803-1804),  243. 

35  7&id.,  243-244. 

36  John  Quincy  Adams,  Memoirs,  I,  293. 

37  Although  the  Senate  was  no  longer  closed  to  the  public  except  when 
special  matters  were  under  discussion,  the  debates  in  the  House  were  given 
much  wider  publicity,  a  fact  to  which  Smith  here  bears  witness. 


Debate  in  Senate  on  the  Louisiana  Government  Bill     119 

believed  firmly  in  the  power  of  the  Government  to  make  laws 
concerning  slavery,  and  to  carry  those  laws  into  effect.  If  this 
could  not  be  done  then  our  power  was  too  feeble  to  govern  the 
Union.  Breckinridge  emphasized  the  importance  of  the  problem 
— the  legislation  for  a  large  section  of  the  country.  In  consider- 
ing this  matter,  said  he,  immediate  effects  of  legislation  must  be 
overlooked.  The  fundamental  issue  was:  "Can  it  be  right  to 
extend  and  foist  slavery  into  that  country?"  Yet  in  answer- 
ing his  own  question,  Breckinridge  could  not  forget  the  interests 
of  his  own  and  neighboring  states.  He  argued,  as  had  been  done 
before,  that  it  would  be  good  policy  to  permit  slaves  to  be  sent 
into  Louisiana  from  the  United  States  because  this  would  disperse 
the  negroes  over  a  wider  area  and  thus  free  the  southern  states 
from  a  part  of  their  black  population.  Unless  slaves  could  be 
carried  into  the  territory  from  the  states,  wealthy  southern  men 
would  be  prohibited  from  going  to  Louisiana  to  settle. 

Answering  a  charge  made  by  Bradley  that  liberty  and  slavery 
could  not  exist  together,  Breckinridge  declared  that  such  a  con- 
dition did  exist  in  the  slave  states.  He  enlivened  the  discussion 
by  asserting  that  the  Constitution  not  only  recognized  slavery 
but  expressly  protected  it.  This  was  denied  by  Adams  who  said : 
''The  Constitution  does  not  recognize  slavery — it  contains  no 
such  word — a  great  circumlocution  of  words  is  used  merely  to 
avoid  the  term  slaves.' '  He  in  turn  was  answered  by  Venable 
who  admitted  that  while  the  Constitution  did  not  contain  the 
actual  word  slave,  nevertheless  it  admitted  the  thing  and  pro- 
tected it,  and  Congress  had  uniformly  acted  accordingly. 

The  whole  situation  from  the  point  of  practical  statesman- 
ship was  summed  up  by  Nicholas  as  follows: 

One  state  only,  South  Carolina,  can  now  import  slaves — and  that  is  a 
right  derived  not  from  Congress,  but  from  the  Constitution — it  is  a  mere 
temporary  right.  The  people  of  Louisiana  cannot  therefore  complain  of 
the  partiality  in  Congress  because  we  deny  them  the  liberty  of  importing 
foreign  slaves — It  is  no  more  than  what  we  long  since  denied  to  the  Mis- 


120       C onstitutioTwl  History  of  the  Louisiana  Purchase 

sissippi  and  Ohio  territories.  We  are  now  making  a  form  of  government 
for  Louisiana,  not  establishing  a  common  and  ordinary  law — I  am  for 
prohibiting  the  people  of  that  country  from  importing  slaves  from  foreign 
countries,  and  leave  it  optional  with  the  government  of  Louisiana,  when 
they  have  one,  to  prohibit  it  from  the  United  States  also,  if  they  should 
think  best.38 

The  vote  on  Hillhouse's  proposition  was  not  then  taken^^  but 
the  measure  was  passed  the  following  day  in  an  amended  form, 
limiting  to  ' '  a  citizen  of  the  United  States ' '  instead  of  ' '  a  person 
or  persons, ' '  in  describing  the  right  to  take  slaves  into  Louisiana. 
The  proposed  change  in  wording  and  the  slave  problem  in  gen- 
eral precipitated  another  debate  on  the  subject,  which,  added 
to  what  had  already  been  carried  on,  led  to  statements  which 
showed  how  bitter  the  feeling  had  become.  Hardly  had  the 
matter  been  raised  again  before  Wright  of  Maryland  stated  what 
was  later  to  be  one  of  the  last  defenses  of  the  slave-holder :  ' '  It 
is  wrong  to  reproach  us  with  the  immorality  of  slavery — that  is 
a  crime  we  must  answer  at  the  bar  of  God — We  ought  not  there- 
fore to  answer  it  here — for  it  would  be  unjust  that  we  should 
be  punished  twice  for  the  same  offence.  ^ ' 

Jackson  opposed  the  amendment  because  it  did  not  authorize 
foreigners  who  might  go  there  to  settle  to  carry  their  slaves  with 
them.  The  settlement  of  that  country  should  be  the  first  object 
aimed  at;  and  interest  dictated  the  admission  of  Englishmen 
there  as  soon  as  possible.**^  The  amendment,  however,  was 
passed.*^ 


38  Plumer,  ''Memorandum,"  Tuesday,  January  31.  Plumer  adds  a  note 
to  the  effect  that  the  real  reason  why  the  senators  from  the  Southern 
States  desired  the  prohibition  of  the  foreign  importation  of  slaves  into 
Louisiana,  was  that  such  action  would  raise  the  price  of  their  own  slaves 
in  the  market,  and  give  them  a  chance  to  get  rid  of  dangerous  slaves. 

39  John  Quincy  Adams,  Memoirs,  I,  293   (January  31). 

40  Plumer,  ''Memorandum,"  Wednesday,  February  1.  Cf.  John  Quincy 
Adams,  Memoirs,  I,  293-294,  for  February  1. 

^1  Annals  of  Congress,  8  Cong.,  1  Sess.  (1803-1804),  244;  Plumer, 
"Memorandum,"  Wednesday,  February  1;  John  Quincy  Adams,  Memoirs, 
I,  293-294. 


Debate  in  Se7mte  on  the  Louisiana  Government  Bill     121 

The  slavery  question  having  been  settled  for  the  time  being, 
the  Senate  turned  its  attention  to  other  provisions  of  the  Louis- 
iana Government  Bill.  Anderson  moved  to  strike  out  the  eighth 
section  which  concerned  the  government  of  the  upper  district, 
known  specifically  as  the  District  of  Louisiana.*^ 

Jackson  argued  against  the  establishment  of  a  regular  gov- 
ernment and  the  opening  of  Upper  Louisiana  to  settlement 
because  it  would  destroy  the  western  states.  It  was  too  soon  to 
settle  Upper  Louisiana.  The  placing  of  large  uncultivated  tracts 
on  sale  would  open  the  way  for  bribery  as  it  had  done  in  Georgia, 
where  he  had  been  offered  half  a  million  acres  to  keep  still,  an 
offer  he  had  refused.*^  Not  only  would  the  value  of  the  lands 
be  greatly  lowered  by  the  settlement  of  Louisiana  but  a  separa- 
tion of  the  Union  would  result.  Worthington  of  Ohio  answered 
that  the  western  states  would  not  separate  unless  the  eastern 
states  by  their  conduct  rendered  it  absolutely  necessary.** 

The  debate  on  striking  out  the  eighth  section  of  the  bill 
continued.  The  principal  provisions  of  this  section,  as  now 
amended,  pertained  to  the  transfer  of  the  form  of  government 
of  Upper  Louisiana  which  existed  previous  to  the  cession  to 
one  under  the  direction  of  the  United  States  Government.  This 
district  was  to  retain  its  name  and  government  except  that  the 
executive  and  judicial  powers  of  the  former  government  should 
be  exercised  by  a  governor,  appointed  by  the  President.     The 


42  Adams,  Memoirs,  I,  294,  under  date  of  February  1.  No  mention  of 
Anderson's  motion  is  made  in  the  Annals  of  Congress,  nor  does  Plumer 
state  the  exact  question  which  came  up  but  his  report  of  a  debate  following 
the  passage  of  the  amendment  on  the  slave  trade  corroborates  Mr.  Adams 's 
statement. 

43  In  1796  Jackson  had  been  the  leader  of  the  ''Anti- Yazoo  Party"  in 
the  Georgia  house  of  representatives.  Jackson's  reference  to  his  own 
honesty  brought  forth  the  rather  sarcastic  rejoinder  from  Cocke:  ''I  am 
glad  Georgia  has  one  uncorrupt  man,  and  I  rejoice  that  he  is  a  senator. 
I  trust  we  may  have  many  such  in  the  nation." 

44  Plumer,  ''Memorandum,"  Wednesday,  February  1;  John  Quincy 
Adams,  Memoirs,  I,  294,  February  2  [Louisiana  Government  Bill]  ''Debate 
until  four  o  'clock,  and  the  question  not  taken. ' ' 


122       Constitutional  History  of  the  Louisiana  Purchase 

powers  of  the  former  commandants  of  posts  or  districts  were 
to  be  vested  in  civil  officers,  to  be  appointed  by  the  President  in 
the  recess  of  the  Senate,  but  at  the  next  meeting  thereof  to  be 
nominated  for  their  advice  and  consent.  Salaries  for  these 
officers  were  provided  for  in  the  bill.*^ 

The  question  now  before  the  Senate  allowed  free  expression 
of  theories  as  to  the  government  of  acquired  territory.  Abstract 
theories  in  general,  expediency,  treaty  rights  and  obligations, 
and  constitutional  restrictions  were  all  enunciated.  The  estab- 
lishment of  an  arbitrary  government  in  order  to  prevent  the 
settlement  of  Louisiana  was  opposed  by  Hillhouse.  He  con- 
tended that  under  the  treaty  this  could  not  be  done,  for  much  of 
the  land  had  been  granted  to  Spaniards,  and  they  must  be  given 
such  a  government  as  they  could  live  under;  otherwise  they 
would  not  be  protected  in  the  enjoyment  of  their  rights  as  stipu- 
lated in  the  treaty.  A  practical  government  was  necessary,  not 
one  like  that  of  the  United  States,  with  which  the  people  of  the 
territory  were  unacquainted.  Nor  would  a  military  form  do, 
for  that  would  be  too  arbitrary.  Trial  by  jury  ought  not  to  be 
extended  to  the  inhabitants  until  they  were  able  to  express  their 
desire  for  it  by  their  own  legislature,  and  to  make  laws  regulat- 
ing that  form  of  trial. 

John  Smith  considered  a  military  government  at  variance 
not  only  with  the  third  article  of  the  treaty  but  also  with  the 
letter  and  spirit  of  the  Constitution.  Furthermore,  now  that  the 
country  was  ours  it  would  be  impossible,  by  any  law  that  could 
be  passed,  to  prevent  people  from  emigrating  and  settling  there. 
Cocke  believed  the  people  of  the  territory  would  be  more  satis- 
fied with  their  old  government  than  with  a  new  one,  even  though 
the  latter  might,  theoretically,  be  better.  He  was  in  favor  of 
allowing  them  their  old  laws  and  customs  with  the  addition, 
however,  of  trial  by  jury.     Boldness  and  resolution  were  neces- 


^^  Annals  of  Congress,  8  Cong.,  1  Sess.  (1803-1804),  245. 


Debate  in  Senate  on  the  Louisiana  Government  Bill    123 

sary  in  the  government  of  the  inhabitants.  ''Tell  that  people 
you  shall  have  justice,  but  you  shall  obey  the  laws,"  represents 
Cocke's  stand  in  the  matter.  The  people,  he  said,  were  not  so 
ignorant  as  senators  considered  them  to  be.  Jackson,  as  before, 
opposed  western  settlement  because  of  the  resulting  depreciation 
of  public  lands  already  held.  He  never  wished  to  see  our  people 
go  beyond  the  Mississippi.  Anderson  bluntly  described  the 
eighth  section  as  a  military  despotism ;  unconstitutional ;  opposed 
to  the  spirit  and  genius  of  our  country.  The  only  power  to 
legislate  for  the  new  country  was  derived  from  the  Constitution 
and  that  required  the  grant  of  a  republican  form  of  government 
and  no  other.  Even  though  this  injured  his  own  state,  Tennessee, 
and  all  the  western  states,  yet  a  constitutional  government  must 
be  established.  According  to  Anderson,  there  were  about  eight 
thousand  inhabitants  in  Upper  Louisiana,  more  than  two-thirds 
of  whom  were  Americans,  most  of  them  emigrants  from  Virginia, 
who  understood  and  would  demand  their  rights.  Dayton  wanted 
to  know  in  what  part  of  the  Constitution  Mr.  Anderson  found 
any  authority  to  legislate  for  Upper  Louisiana.  He  denied  that 
any  such  authority  was  granted  by  the  Constitution.  Going 
beyond  the  Constitution  he  said,  ''We  derive  our  power  and 
right  from  the  nature  of  government.  That  Country  is  a  pur- 
chased territory  and  we  may  govern  it  as  a  conquered  one. ' '  To 
Dayton  the  only  safe  government  to  establish  in  Upper  Louis- 
iana was  a  military  one.  He  hoped  the  settlement  of  that  country 
might  be  prevented  forever.  If  settled  it  would  separate  from 
the  Union,  form  a  new  empire  and  become  the  enemy  of  the 
United  States.  Dayton  then  alluded  to  a  favorite  proposal  of 
the  time  when  he  said  he  believed  the  Indians  on  the  eastern  side 
of  the  Mississippi  could  be  induced  to  move  to  the  other  side.*^ 
He  favored  the  retention  of  the  eighth  section  of  the  bill. 


46  See  Miss  Abel,  ^ '  History  of  Events  resulting  in  Indian  Consolidation 
West  of  the  Mississippi,"  in  American  Historical  Association,  Annual 
Report,  1906,  I,  249.    Miss  Abel  did  not  use  Plumer  's  ' '  Memorandum. ' ' 


124       Constitutional  History  of  the  Louisiana  Purchase 

The  distinction,  under  the  Constitution,  between  states  and 
territories  was  brought  out  by  Wright,  another  advocate  of  the 
eighth  section.  Alluding  to  the  opposition  of  the  section  on  con- 
stitutional grounds,  Wright  claimed  that  while  the  Constitution 
required  that  the  governments  of  the  states  should  be  republican, 
this  was  not  true  of  territories.  He  added  that  to  extend  jury 
trial  to  that  country  would,  in  reality,  be  a  denial  of  justice 
because  the  people  lived  too  remote  from  each  other  to  derive 
any  benefit  from  the  jury  system. 

A  rather  new  and  novel  interpretation  of  republican  govern- 
ment was  laid  down  by  Samuel  Smith  who  considered  the  eighth 
section  of  the  bill  republican  in  principle.  Congress  being  the 
people's  legislators  and  the  commandants  only  the  agents  of 
Congress.  This  view  certainly  would  have  found  little  favor 
in  colonial  times,  substituting  Parliament  for  Congress  and  the 
American  colonists  for  the  inhabitants  of  Upper  Louisiana.  It 
had  been  essentially  the  British  point  of  view  and  one  bitterly 
opposed  by  the  colonists.  Theory  and  practice  could  thus  vary 
greatly  in  the  space  of  a  few  short  years,  according  as  the  parties 
to  the  action  shifted. 

Pickering  considered  it  an  error  to  apply  the  Constitution  to 
Upper  Louisiana:  it  did  not  extend  there.  The  Senate  was 
bound,  however,  by  the  treaty  to  extend  protection  to  the  people 
of  that  country  and  secure  to  them  their  rights  and  privileges. 
He  held  that  they  must  be  considered  and  governed  as  a  colony. 
Once  more  Pickering  advanced  the  futility  of  attempts  to  pre- 
vent settlement  of  the  new  country  by  legislation :  if  the  people 
found  it  to  their  interest  to  settle  it,  prohibition  would  be 
unavailing. 

Pickering's  statements  are  interesting  to  us  as  we  look  back 
over  the  rapid  expansion  of  the  United  States.  Not  yet  is  it 
settled  in  the  minds  of  scholars  whether,  theoretically,  the  Con- 
stitution extends  to  the  territories  or  not,  although  there  is  little 


Debute  in  Senate  on  the  Louisiana  Government  Bill     125 

doubt  that  they  are  governed  as  colonies.  The  utter  futility  of 
attempting  to  prevent  settlement  by  legislation  has  been  seen 
time  and  again.  Interest  has  predominated  and  the  resistless 
tide  of  American  expansion  has  moved  westward,  despite  treaties 
with  Indians  to  the  contrary,  and  despite  Spanish  and  Mexican 
attempts  to  stem  it.  ''When  one  bird  flies  and  goes  ahead,  com- 
monly more  will  follow,"  was  the  picturesque  statement  of  one 
of  the  Indian  chiefs  in  the  early  days  of  the  Republic  in  his 
complaint  to  the  United  States  Government  against  American 
encroachment  on  the  lands  of  his  tribe,  in  violation  of  treaty 
agreements.  The  tide  might  be  temporarily  halted  but  it  found 
its  way  around,  if  not  through,  the  immediate  barrier,  and 
moved  onward. 

After  a  few  more  brief  remarks  for  and  against  the  eighth 
section,  the  question  was  taken  and  the  section  struck  out.*^ 

The  section  providing  for  the  government  of  Upper  Louisiana 
having  been  struck  out,  the  way  was  open  for  further  legislation 
and  discussion  on  that  point;  and  accordingly  the  Senate  took 
the  matter  up  on  February  3.  Jackson  opposed  the  establish- 
ment of  a  civil  government  in  that  country  because  of  the  pro- 
posed plan  of  the  Government  to  induce  the  Indians  to  move 
across  the  Mississippi,  exchanging  their  present  lands  for  lands 
in  Upper  Louisiana.  He  maintained  that  the  Indians  would 
already  have  moved  there  if  the  Spaniards  had  not  prevented 
them.  The  establishment  of  a  civil  government  would  lead  to 
settlement  by  whites  and,  as  a  result,  to  expensive  and  dangerous 
Indian  wars. 

Nicholas  expressed  the  hope  that  Upper  Louisiana  would  not 
for  many  years  be  admitted  as  a  state  or  states:  New  Orleans, 


47  Plumer,  ' '  Memorandum, ' '  Thursday,  February  2.  Cf .  John  Quincy 
Adams,  Memoirs,  I,  294,  February  2:  ''The  debate  on  Mr.  Anderson's 
motion  was  continued  this  day  in  Senate  until  four  o'clock.  The  eighth 
section  was  struck  out ;  yeas  sixteen,  nays  nine. ' '  For  the  vote,  see  Annals 
of  Congress,  8  Cong.,  1  Sess.  (1803-1804),  245. 


126       Constitutional  History  of  the  Louisiana  Ptirchase 

perhaps,  must  soon  be  admitted  as  such.  Jackson  then  brought 
the  question  to  an  issue  by  moving  to  annex  Upper  Louisiana  to 
the  Indiana  Territory.  Breckinridge  immediately  agreed.  Hill- 
house,  however,  pointed  to  difficulties  in  effecting  an  immediate 
change;  namely,  the  difference  in  governments,  laws,  customs, 
manners,  and  habits  of  the  countries.  Samuel  Smith  approved 
the  measure  as  a  means  of  lessening  the  number  of  officers 
required  and,  consequently,  the  expense;  and  also  because  it 
would  stop  slavery  there.*^  Wright  agreed  to  unite  the  two 
territories  governmentally  but  not  territorially.  Hillhouse 
desired  to  know  how  the  separate  rights  of  each  territory  could 
be  guaranteed.  Who  was  to  legislate  for  them?  Were  they  to 
be  governed  by  different  laws  ?  Such  a  union,  he  thought,  would 
make  one  of  the  territories  a  mere  colony  of  the  other.  Wright 
answered  part  of  the  query  by  saying  that  the  territories  must 
be  governed  by  different  laws.  While  expressing  a  willingness 
to  accord  with  the  majority,  John  Smith  preferred  to  have  a 
part  of  Upper  Louisiana  annexed  to  the  Mississippi  Territory. 
While  approving,  Venable  saw  a  difficulty  in  the  fact  that  it 
was  not  yet  settled  that  Louisiana  was  a  part  of  the  United 
States.  He  would  not  therefore  join  the  two  territories  together 
but  would  extend  the  authority  of  the  government  of  the  Indiana 
Territory  to  the  territory  of  Upper  Louisiana.*^ 

On  February  7,  the  debate  on  the  Louisiana  Government  Bill 
was  over  the  disqualification  and  exclusion  of  people  of  color 
from  serving  on  juries.    It  was  decided  to  exclude  thern.^^ 


*8  By  provision  of  the  Ordinance  of  1787. 

49  Plumer,  ' '  Memorandum, ' '  Friday,  February  3.  Cf .  John  Quincy 
Adams,  Memoirs,  I,  294,  February  3:  ''The  debate  on  Mr.  Anderson's 
motion  was  renewed,  and  General  Jackson  proposed,  by  way  of  substitute, 
that  the  government  of  Upper  Louisiana  should  be  annexed  to  the  Indiana 
Territory.  The  question  was  not  finally  taken,  but  will  doubtless  finally- 
prevail. ' ' 

50  Plumer,  ' '  Memorandum, ' '  Tuesday,  February  7.  Plumer  adds, 
''Democrats  in  general  voted  in  favor  of  exclusion."  See  Annals  of 
Congress,  8  Cong.,  1  Sess.  (1803-1804),  247-248;  John  Quincy  Adams, 
Memoirs,  I,  294,  February  7. 


Debate  in  Semite  on  the  Louisiana  Government  Bill     127 

The  same  bill  was  before  the  Senate  the  next  day  and  the 
amendment  to  annex  Upper  Louisiana  to  Indiana  was  with- 
drawn. Nicholas  then  offered  an  amendment  authorizing  the 
officers  of  the  Indiana  Territory  to  govern  the  Upper  District 
of  Louisiana  and  establishing  the  existing  laws  of  Louisiana  in 
that  district.  This  was  adopted  and  the  act  as  amended  was 
ordered  to  be  printed.  The  principles  of  the  bill  had  been  settled 
by  the  Democratic  senators  in  caucus  on  the  preceding  night, 
according  to  Plumer,  and  they  agreed  to  it  in  the  Senate  without 
debate. °^ 

The  Senate  discussion  of  the  Breckinridge  Bill  was  rapidly 
drawing  to  a  close.  An  amendment  was  offered,  February  10, 
by  Anderson,  providing  for  the  election  of  representatives  when 
a  certain  number  (left  blank)  of  free  white  male  inhabitants 
had  been  reached.  The  number  of  representatives  was  to 
increase  in  proportion  to  the  increase  of  population;  but  a  limit 
was  to  be  set.  The  manner  of  electing  the  legislative  council 
by  the  representatives  and  the  President  was  also  stipulated. 
Qualifications  and  terms  of  office  for  each  body  were  laid  down.^- 
The  amendment  failed,  receiving  only  five  votes  in  its  favor.^^ 

Three  days  later,  February  13,  another  attempt  at  amend- 
ment was  made.  It  was  proposed  to  change  the  fourth  section, 
so  as  to  provide  for  the  laying  off  of  the  territory  by  the  governor 
into  twenty-four  districts,  from  each  of  which  the  free  male 
householders  were  annually  to  elect  one  person  to  compose  the 
legislative  council.  This  amendment  failed  by  the  narrow  mar- 
gin of  one  vote,  the  final  count  being  thirteen  yeas  to  thirteen 
nays.    The  bill  then  passed  to  the  third  reading.^* 


51  Plumer,  '^ Memorandum,"  Wednesday,  February  8.  Cf.  Annals  of 
Congress,  8  Cong.,  1  Sess.  (1803-1804),  248.  John  Quincy  Adams,  Memoirs 
of  this  date  have  no  information  on  the  subject. 

52  Annals  of  Congress,  8  Cong.,  1  Sess.   (1803-1804),  250-251. 
53lhid.,  251. 

54  Ihid.,  251-252 ;  John  Quincy  Adams,  Memoirs,  I,  294-295. 


128       Constitutianal  History  of  the  Louisiana  Purchase 

While  the  Senate  was  busy  on  the  third  reading  the  question 
of  salaries  for  the  officers  of  the  territorial  government  arose. 
There  was  quite  a  divergence  of  opinion  over  the  amount  to  be 
paid.  On  the  salary  of  the  governor  of  Orleans  Territory,  Jack- 
son, Dayton,  Samuel  Smith  and  Logan  spoke  for  $8000  per 
annum,  but  only  seven  voted  for  it.  Breckinridge  and  John 
Smith  favored  $6000.  Twelve  senators  voted  for  this  sum. 
Oleott,  Franklin  and  Cocke  argued  for  $5000,  and  eighteen  votes 
being  cast  in  favor  of  it,  the  motion  was  carried.  The  salary  of 
secretary  was  set  at  $2000;  that  of  the  three  judges  at  $2000 
each;  district  judge,  $2000;  attorney,  $600,  and  marshall,  $200. 
The  members  of  the  legislative  council  were  each  to  have  four 
dollars  per  diem  while  attending  the  council.^^ 

One  final  attempt  to  amend  the  bill  with  regard  to  the  slave 
trade  was  made  in  a  motion  to  strike  out  of  the  tenth  section, 
the  words:  ''And  no  slave  or  slaves  shall  directly  or  indirectly, 
be  introduced  into  said  Territory  except  by  a  citizen  of  the 
United  States  removing  into  said  Territory  for  actual  settle- 
ment, and  being  at  the  time  of  such  removal  hona  fide  owner 
of  such  slave  or  slaves."  The  amendment  failed.^*'  Two  other 
proposed  amendments  to  the  same  section  suffered  the  same  fate. 
The  last  proposed  favored  the  extension  of  the  prohibition  of 
the  importation  of  slaves  into  Louisiana  ''from  any  State 
authorizing  the  importation  of  slaves  from  any  foreign  port  or 
place."" 

This  attempted  amendment  was  the  cause  of  a  further 
enunciation  of  opinion  on  the  slavery  question.     Stone  of  North 


55  Plumer,  ''Memorandum,"  Thursday,  February  16.  During  the  course 
of  this  debate,  Plumer  says  that  Jackson  and  Samuel  Smith  observed  '  *  That 
the  people  must  be  governed  more  by  pomp,  parade,  and  shew  than  by 
reason — that  splendid  retinue  and  armed  men  are  more  convincing  than 
arguments."  Cf.  Adams,  Memoirs,  I,  295,  February  16,  ''In  Senate  they 
were  engaged  in  the  Louisiana  bill. ' ' 

56  Annals  of  Congress,  8  Cong.,  1  Sess.  (1803-1804),  255. 

57  Ihid. 


Debate  in  Seimie  on  the  Louisiana  Government  Bill    129 

Carolina  summed  up  the  position  of  the  slaveholder  and  his 
rights  in  language  which  might  have  been  quoted  verbatim  in 
the  majority  decision  in  the  Dred  Scott  case.  ' '  Slaves, ' '  he 
held,  ''are  property.  The  rights  of  property  are  by  the  Consti- 
tution guaranteed  and  why  should  the  holders  of  this  kind  of 
property  be  prohibited  from  sending  and  selling  their  slaves  in 
Louisiana  ? ' '  Maclay  said  that  the  country  was  purchased  as  an 
outlet  for  the  United  States,  and  to  admit  slaves  there  would 
defeat  that  object,  Jackson  hinted  at  disastrous  results  if  South 
Carolina  were  prohibited  from  sending  slaves  into  Louisiana 
because  she  imported  them  from  Africa.  To  put  it  plainly.  South 
Carolina,  if  offended,  would  reject  the  Twelfth  Amendment  of 
the  Constitution,  then  under  consideration,  and  her  rejection 
would  prevent  its  ratification.  Jackson  also  defended  the  plan 
of  the  Administration  to  exchange  lands  in  Louisiana  with  the 
Indians  for  their  lands  on  the  eastern  side  of  the  Mississippi. 
He  had  been  assured  by  the  President  that  this  was  a  favorite 
measure  of  his ;  furthermore,  sixteen  of  the  Cherokee  chiefs  had 
already  consented  to  make  the  exchange. ^^ 

The  Louisiana  Government  Bill  was  finally  passed  on  Feb- 
ruary 18,  1804,  with  only  five  votes — those  of  Adams,  Hillhouse, 
Olcott,  Plumer,  and  Stone,  all  New  Englanders  except  Stone — 
against  it.^^  The  last  speech  in  opposition  to  the  bill  was  that 
of  John  Quincy  Adams,  who,  true  to  his  principles  throughout, 
based  his  opposition  on  the  ground  that  a  government  was  being 
formed  for  a  people  without  their  consent;  a  principle  contrary 
to  republican  government  in  which  all  power  is  derived  from  the 
people. 

The  people  of  that  country  [Louisiana]  have  given  no  power  or  author- 
ity to  us  to  legislate  for  them.     The  people  of  the  United  States  could 


58  Plumer,  ''Memorandum,"  Friday,  February  17. 

^9  Annals  of  Congress,  8  Cong.,  1  Sess.  (1803-1804),  256.  The  passage 
of  the  bill  was  reported  in  the  National  Intelligencer,  and  Washington 
Advertiser,  February  22,  1804. 


130       Constitutional  History  of  the  Louisiana  Purchase 

give  us  none,  because  they  had  none  themselves.  The  treaty  has  given  us 
none,  because  they  were  not  parties  to  it — it  was  made  without  their 
knowledge.  To  pass  this  bill  is  an  encroachment  on  their  rights — it's  a 
commencement   of  assured  power — it's   establishing  a  precedent   for  after 

Congresses   destructive   of   the   essential   principles   of   genuine    liberty 

This  bill  contains  arbitrary  principles — principles  repugnant  to  our  Con- 
stitution. The  Legislative  Council  are  to  be  appointed  by  the  Governor, 
who  is  a  creature  of  the  President's — not  elected  by  the  people. 

The  judges  are  to  legislate — make  laws  and  expound  them — this  is  the 
essence  of  tyranny. 

In  the  other  territorial  governments,  even  in  the  departure  from  liberty, 
there  is  a  reverence  for  it — for  it  provides  that  when  its  inhabitants  are 
increased  to  a  certain  number  they  shall  elect  a  representative. 

This  bill  provides  that  the  officers  shall  be  appointed  by  the  President 
alone  in  the  recess  of  the  Senate — Why  this  departure  from  the  Constitu- 
tion. 

The  Judicial  officers  are  to  be  appointed  for  a  term  of  years  only,  and 
yet  the  bill  is  not  limited.  The  constitutional  tenure  for  judicial  officers  is 
during  good  'behaviorfi^ 

The  proper  procedure  in  such  a  case  is  next  laid  down  by 
Adams : 

The  first  thing  Congress  ought  to  have  done  in  relation  to  that  country, 
should  have  been  to  propose  an  amendment  to  the  Constitution,  to  the  sev- 
eral States  to  authorize  Congress  to  receive  that  Country  into  the  Union. 
We  ought  to  have  applied  to  the  inhabitants  of  Louisiana  to  recognize 
our  right  to  govern  them.  This  we  ought  to  have  done,  and  there  is  no 
doubt  that  the  United  States  and  that  territory  would  have  given  the 
authority  before  the  next  session. 

Adams  advanced  objections  to  legislating  for  the  territorj^ 
because  of  ignorance  of  conditions  there.  The  bill  itself  con- 
tained certain  incongruous  articles.  The  governor's  appointing 
and  proroguing  the  council  he  branded  as  tyranny.  The  people 
were  not  ready  for  trial  by  jury.     The  importance  of  precedent 


60  This  was  not,  however,  the  interpretation  adopted  later  by  the 
Supreme  Court.  In  American  Insurance  Co.  vs.  Canter  (I  Peters,  546),  it 
was  held  that  courts  in  the  territory  of  Florida  were  legislative  courts 
created  by  Congress  and  did  not  come  under  the  restrictions  of  the  third 
article  of  the  Constitution.  It  was  not  required,  therefore,  that  the  judges 
presiding  over  those  courts  should  hold  office  during  good  behavior. 


Debate  in  Seriate  on  the  Louisiana  Government  Bill     131 

was  not  overlooked.  "This,"  he  argued,  "is  a  Colonial  system 
of  government.  It  is  the  first  the  United  States  have  established. 
It  is  a  bad  precedent — the  U.  S.  in  time  will  have  many  colonies 
— precedents  are  therefore  important.  "^^ 

Adams's  plea  for  the  republican  theory  of  government  was 
unavailing  as  against  the  doctrine  of  practical  expediency.  For 
good  or  ill,  the  latter  policy  was  adopted,  to  serve  as  the  prece- 
dent, as  Adams  said  it  would,  on  later  occasions.  So  far  as 
Louisiana  was  concerned  it  only  remained  to  see  what  action  the 
House  of  Representatives  would  take. 


61  Plumer,  ''Memorandum,"  Saturday,  February  18.  On  this  important 
speech  John  Quincy  Adams  in  his  Memoirs,  I,  295,  merely  states:  ''I  spoke 
against  it,  alone,  and  Avas  very  shortly  answered  by  Mr.  Wright,  alone. 
On  the  question,  the  yeas  were  twenty,  the  nays  five.  Messrs.  Dayton,  Pick- 
ering, Tracy,  Wells,  and  White  absent.  Mr.  Stone  alone  of  the  major  party 
voted  against  the  bill,  and  thus  terminates  the  introductory  system  for  the 
government  of  Louisiana.  I  have  thought  it  placed  upon  wrong  founda- 
tions.   It  is  for  time  to  show  the  result." 


CHAPTER  VIII 
THE  LOUISIANA  GOVERNMENT  BILL  IN  THE  HOUSE 

Closely  connected  with  the  problem  of  a  frame  of  government 
for  Louisiana,  bills  were  introduced  in  the  House  for  the  regula- 
tion of  affairs  in  the  newly-acquired  territory.  During  the 
debate  on  them  many  novel  interpretations  of  the  Constitution 
were  advanced.  It  was  proposed  by  one  of  these  bills  to  allow 
all  citizens  of  the  United  States  and  all  inhabitants  of  Louisiana 
who  had  been  resident  there  on  the  thirtieth  of  April,  1803,  on 
taking  an  oath  of  allegiance  to  the  United  States,  to  obtain 
registry  for  their  vessels.  Varnum  of  Massachusetts,  George  W. 
Campbell  of  Tennessee,  Bedinger  of  Kentucky,  Dennis  of  Mary- 
land, Sloan  of  New  Jersey,  and  Holland  of  North  Carolina 
supported  this  measure,  while  Nicholson  of  Maryland,  Dana  of 
Connecticut,  and  Hastings  of  Massachusetts  opposed  it.  Those 
favoring  the  bill  cited  the  rights  and  privileges  guaranteed  to 
the  inhabitants  of  the  territory  under  the  third  article  of  the 
treaty,  which  included  the  ''enjoyment  of  their  liberty,  property 
and  religion."  Vessels  being  property,  it  was  argued,  all  rights 
attached  to  them  were  guaranteed  to  all  those  who  were  inhab- 
itants at  the  time  of  cession,  without  discrimination.  To  allow 
residents  of  five  years  standing  to  register  their  vessels,  while 
those  who  had  resided  in  the  territory  a  shorter  period  were 
prohibited — a  distinction  which  had  been  suggested — would  be 
an  invasion  of  rights  of  the  latter.  The  treaty  was  the  supreme 
law  of  the  land,  and  Congress  could  not  violate  it.  To  do  so 
would  not  only  cause  dissatisfaction  in  the  territory  but  might 
afford  a  pretext  on  the  part  of  the  ceding  power  to  obstruct  the 
execution  of  the  treaty.^ 


1  Annals  of  Congress,  8  Cong.,  1  Sess.  (1803-1804),  977-978. 


Louisiana  Government  Bill  in  the  House  133 

The  opponents  of  the  measure  stated  that  Congress  was 
authorized  by  the  Constitution  to  fix  one  uniform  rule  of  natural- 
ization, and  that  Congress  had  passed  a  law  requiring  five  years' 
residence  previous  to  the  naturalization  of  an  alien  ;2  further- 
more, by  the  revenue  laws  of  the  United  States  only  citizens  were 
permitted  to  register  their  vessels.^  The  extension  of  this  privi- 
lege to  all  the  inhabitants  of  Louisiana  would  be  to  grant  them 
an  unconstitutional  preference  over  the  inhabitants  of  the 
United  States  who  were  not  citizens.  When  the  inhabitants  of 
the  ceded  territory  should  be  admitted  into  the  Union,  they 
would  be  entitled  to  all  the  rights  of  citizens  of  the  United  States ; 
until  that  time  "they  must  be  viewed  in  the  light  of  colonists, 
subject  to  the  discretionary  government  of  the  United  States." 
It  would  be  unjust  to  extend  privileges  to  the  inhabitants  of 
Louisiana  which  were  denied  by  law  to  some  of  the  citizens  of 
the  United  States.  A  citizen  could  not  "naturalize"  a  foreign 
bottom,  yet  this  measure  would  permit  the  people  of  Louisiana 
to  "naturalize"  their  ships,  which  must  be  considered  foreign 
bottoms.  The  claim  that  the  right  must  be  granted  because  of 
a  treaty  stipulation,  was  a  reason  for  the  rejection  of  the  motion 
because,  if  agreed  to,  it  would  establish  the  principle  that  the 
President  and  Senate  in  the  exercise  of  the  treaty-making  power, 
could  make  citizens  of  as  many  foreigners  as  they  pleased.* 

To  this  last  statement  it  was  replied  that, 

the  treaty-making  power  was  unquestionably  under  the  constitutional  con- 
trol of  Congress,  who  might,  or  might  not,  carry  a  treaty  into  effect;  but 
that,  after  having  carried  it  generally  into  effect,  as  had  been  the  case  with 
the  Louisiana  Convention,  it  became  the  supreme  law  of  the  land,  and  a 
discretion  ceased  to  exist  in  the  Government  to  fulfil  it. 

The  motion  was  agreed  to  by  the  House  by  a  vote  of  fifty-five 
to  forty-eight.^ 

2  Act  approved  April  2,  1802;  Laws  of  TJ.  States,  III,  475-478. 

3  Act  of  December  31,  1792;  Laws  of  U.  States,  II,  313;  Act  of  February 
18,  1793,  ibid.,  332. 

i  Annals  of  Congress,  8  Cong.,  1  Sess.  (1803-1804),  978. 
5lhid.,  979. 


134       Constitutimml  History  of  the  Louisiana  Purchase 

On  February  20,  1804,  a  message  from  the  Senate  informed 
the  House  that  the  Senate  had  passed  a  bill  entitled,  *'An  act 
erecting  Louisiana  into  two  Territories,  and  providing  for  the 
temporary  government  thereof";  to  which  the  concurrence  of 
the  House  was  desired." 

On  the  same  day  a  memorial  from  the  merchants  of  New 
Orleans  was  read  begging  for  relief  from  the  existing  state  of 
affairs.  They  asked  for  the  extension  to  them  of  the  laws  of 
the  United  States  and  for  proper  documents  which  would  enable 
them  to  use  their  ships.  This  memorial  was  referred  to  the 
Committee  of  the  Whole.^  Two  days  later  the  House  took  up 
the  discussion  of  a  bill  from  the  Senate  providing  for  the  record- 
ing, registering,  and  enrolling  of  ships,  or  vessels  in  the  District 
of  Orleans.  By  the  bill,  all  who  had  been  inhabitants  of  Louis- 
iana on  the  thirtieth  of  April,  1803,  and  all  citizens  of  the  United 
States  residing  therein,  were  authorized  to  register  their  vessels. 
A  motion  to  strike  out  the  part  of  the  provision  extending  the 
right  of  registry  to  citizens  of  the  United  States  was  made  by 
Roger  Griswold,  and  caused  considerable  debate.  Those  advo- 
cating the  amendment  did  not  consider  it  just  to  extend  such  a 
right  to  citizens  of  the  United  States  in  the  ceded  territory  while 
the  same  right  was  refused  to  citizens  in  the  Atlantic  states. 
Citizens  of  Louisiana  would  be  enabled  to  '^  naturalize "  foreign 
bottoms  which  they  had  purchased  and  to  trade  with  them  in 
the  ports  of  the  United  States  as  well  as  in  those  of  Louisiana, 
thus  affecting  the  rights  of  shipowners  who  had  obtained  regis- 
ters under  the  existing  navigation  system.  The  opponents  of 
the  amendment  declared  that  citizens  of  the  United  States  in 
general  ought  to  be  placed  on  an  equal  footing  with  the  inhab- 
itants of  Louisiana ;  otherwise  great  dissatisfaction  would  result.^ 


Q  Annals  of  Congress,  8  Cong.,  1  Sess.   (1803-1804),  1038. 

7  Ibid. 

8  Ibid.,  1044-1046. 


Louisiana  Government  Bill  in  the  House  135 

The  amendment  was  lost,  and  the  Senate  bill  was  passed  on 
February  23.^ 

The  House  next  proceeded  to  take  up  the  bill  from  the 
Senate  making  plans  for  the  erection  of  Louisiana  into  two 
territories  and  providing  for  their  government.^^  The  fourth 
section,  which  provided  for  the  legislative  powers,  aroused  imme- 
diate opposition.  Under  this  section,  the  legislative  powers  were 
to  be  vested  in  the  governor  and  thirteen  persons  of  the  territory, 
to  be  called  the  legislative  council,  who  were  to  be  appointed 
annually  by  the  President.  Certain  qualifications  as  to  residence 
and  the  holding  of  real  estate  were  to  be  required.  The  gover- 
nor, with  the  advice  and  consent  of  the  council,  was  given  power 
to  alter,  modify  or  repeal  the  laws  in  force  at  the  commencement 
of  this  act.  The  legislative  powers  were  to  extend  also  to  all 
rightful  powers  of  legislation,  with  the  usual  restrictions  requir- 
ing consistency  with  the  Constitution  and  laws  of  the  United 
States,  and  guaranteeing  religious  freedom.  The  governor  must 
have  the  laws  published  throughout  the  territory  and  report 
them  to  the  President,  to  be  laid  before  Congress  for  approval 
or  disapproval.  The  governor  and  legislative  council  were  to 
have  no  power  over  the  primary  disposal  of  the  soil;  nor  could 
they  tax  the  lands  of  the  United  States,  nor  interfere  with  claims 
to  land  within  the  territory.  The  governor  could  convene  or 
prorogue  the  legislative  council  whenever  he  should  deem  it 
expedient.  It  was  also  his  duty  to  keep  the  President  informed 
of  matters  pertaining  to  the  inhabitants  of  the  territory.^^ 

Leib  and  Gregg,  both  from  Pennsylvania,  were  opposed  to 
the  power  granted  to  the  govemor.^^  Varnum  of  Massachusetts 
believed  that  provision  ought  to  be  made  for  the  election  of  a 

^lUd.,  1048-1049. 

10  For  the  Senate  debate  see  the  preceding  chapter. 

^^  Annals  of  Congress,  8  Cong.,  1  Sess.  (1803-1804),  1054. 

^^lUd.,  1055. 


136       Constitutional  History  of  the  Louisiana  Purchase 

legislative  body  by  the  people.  Elliott  of  Vermont  thought  that 
the  section  under  consideration  was  not  consistent  with  the  spirit 
of  the  Constitution  but  that  a  small  amendment  might  make  it 
so.^^  Eustis  of  Massachusetts  declared  it  to  be  very  difficult 
to  form  a  system  of  government  for  the  territory  in  question, 
conformable  with  the  ideas  of  civil  liberty  under  the  Constitu- 
tion. Quoting  the  third  article  of  the  treaty  he  said  that  the 
real  difficulty  lay  in  determining  whether  this  article  had  or  had 
not  admitted  the  people  of  Louisiana  into  the  Union  with  all  the 
rights  of  citizens  of  the  United  States.  He  thought  that  the 
people  of  the  territory  were  unprepared  for  exercising  electoral 
power,  and  the  first  object  of  the  Government  would  be  to  pro- 
tect them  in  their  rights.  It  was  necessary  that  the  Government 
of  the  United  States  should  assert  its  authority  until  the  admis- 
sion of  the  territory  into  the  Union  admitted  the  people  to  the 
enjoyment  of  state  rights.  The  government  laid  down  in  the 
bill  Eustis  considered  as  a  new  thing  in  the  United  States,  but 
so  were  the  people  of  the  country  different  from  the  citizens  of 
the  United  States.     He  continued  with  the  statement : 

I  am  one  of  those  who  believe  that  the  principles  of  civil  liberty  cannot 
suddenly  be  engrafted  on  a  people  accustomed  to  a  regimen  of  a  directly 
opposite  hue.  The  approach  of  such  a  people  to  liberty  must  be  gradual. 
I  believe  them  at  present  totally  unqualified  to  exercise  it. ...  I  consider 
them  as  standing  in  nearly  the  same  relation  to  us  as  if  they  were  a  con- 
quered country.  By  the  treaty  they  are  entitled  to  the  enjoyment  of  all 
the  rights  advantages  and  immunities  of  citizens  of  the  United  States,  and 
to  be  incorporated  into  the  Union  as  soon  as  possible  according  to  the 
principles  of  the  Federal  Constitution — but  can  they  be  admitted  now? 
Are  they  at  this  minute  so  admitted?  If  not,  they  are  not  entitled  to  these 
rights;  but  if  they  were,  I  should  doubt  the  propriety  of  extending  them 
to  them.14 

Lucas  of  Pennsylvania  agreed  with  Eustis,^^  while  Lyon  of 
Kentucky  thought  the  people  should  have  at  least  a  certain 

^5  Annals  of  Congress,  8  Cong.,  1  Sess.   (1803-1804),  1056. 
i4  7&idf.,  1057-1059. 
i5  7Md.,  1061. 


Louisiana  Government  Bill  in  the  House  137 

amount  of  participation  in  government.^®  Speaker  Macon  of 
North  Carolina  moved  that  the  fourth  section  be  struck  out. 
He  was  opposed  to  the  establishment  of  a  species  of  government 
unknown  to  the  laws  of  the  United  States.  Macon  recognized 
three  descriptions  of  government  in  the  United  States :  that  of 
the  Union,  that  of  the  states,  and  territorial  governments.  In  his 
estimation,  the  territorial  government  established  by  the  Ordi- 
nance of  1787  was  the  best  adapted  to  the  circumstances  of  the 
people  of  Louisiana,  and  he  believed  that  it  could  be  modified 
so  as  best  to  promote  their  convenience.^^ 

George  W.  Campbell  of  Tennessee,  bitterly  denounced  the 
form  of  government  contemplated.     He  declared  that: 

It  really  establishes  a  complete  despotism,  that  it  does  not  evince  a 
single  trait  of  liberty;  that  it  does  not  confer  one  single  right  to  which 
they  are  entitled  under  the  treaty;  that  it  does  not  extend  to  them  the 
benefits  of  the  Federal  Constitution  or  declare  when,  hereafter,  they  shall 
receive  them.  I  believe  it  will,  on  investigation,  be  found  difficult  to  sep- 
arate liberty  from  the  right  of  self-government,  and  hence  arises  the  ques- 
tion, now  to  be  decided,  whether  we  shall  countenance  the  principle  of 
government  by  despotic  systems  of  government,  or  support  the  principle 
that  they  are  entitled  to  be  governed  by  laws  made  by  themselves,  and  to 
expect  that  they  shall,  in  due  time,  receive  all  the  benefits  of  citizens  of  the 
United   States  under  the  Constitution. 

He  was  opposed  to  the  establishment  of  a  despotic  form  of 
government  in  Louisiana  and  favored  a  territorial  government 
similar  to  that  of  Mississippi  Territory.^* 

Another  opponent  of  the  measure  was  Jackson  of  Virginia. 
He  held  that  since  the  guarantee  of  incorporation  of  the  inhab- 
itants of  Louisiana  into  the  Union  could  be  made  under  the 
Constitution,  Congress  was  bound  to  admit  them  to  the  rights 
guaranteed  by  the  treaty.  Both  policy  and  moral  obligation 
dictated  the  establishment  of  a  system  of  government  different 
from  that  contained  in  this  section  of  the  bill.    Holland  of  North 


16  IMd.,  1059-1060. 
^T  lUd.,  1062. 
^^lUd.,  1063-1067. 


138       Constitutional  History  of  the  Louisiana  Purchase 

Carolina,  on  the  other  hand,  said  the  object  of  the  bill  was  to 
extend  the  laws  of  the  United  States  over  Louisiana,  not  to  enable 
the  people  of  Louisiana  to  make  laws.  The  people  there  were 
not  prepared  for  self-government.  Sloan  of  New  Jersey  was 
desirous  of  allowing  the  people  of  Louisiana  the  elective  fran- 
chise, which  he  considered  ''not  only  as  their  inherent  and 
inalienable  right,  but  as  a  right  we  are  bound  to  give  them  to 
fulfill  the  treaty  of  cession."  Smilie  of  Pennsylvania  favored 
giving  the  people  of  Louisiana  more  of  a  voice  in  their  govern- 
ment, ''of  bestowing  every  blessing  consistent  with  the  pro- 
visions of  the  Federal  Constitution."  Boyle  of  Kentucky  was 
against  granting  such  great  powers  to  the  President,  for  he 
considered  it  to  be  a  dangerous  precedent.  Reverting  to  his- 
tory, he  compared  the  American  objection  to  the  Declaratory 
Act  of  Great  Britain  with  the  present  bill.^^ 

In  the  face  of  so  general  an  objection  to  this  section  of  the 
bill  it  was  clear  that  it  could  not  pass.  By  a  vote  of  eighty  to 
fifteen  it  was  struck  out.^°  A  substitute  was  offered  by  George 
W.  Campbell.  This  provided  that  the  governor  and  judges 
should  adopt  and  publish  in  the  territory  such  laws  of  the  orig- 
inal states  as  were  suitable  to  the  needs  of  the  territory.  They 
could  also  make  laws,  which  of  course  must  be  submitted  to 
Congress.  Such  laws,  subject  to  the  approval  of  Congress,  were 
to  be  in  force  until  the  organization  of  a  territorial  general 
assembly,  which  could  alter  or  repeal  them.  The  governor  and 
judges  were  to  divide  the  territory  into  counties  in  which  the 
governor  should  appoint  the  necessary  ofiicers.  After  the  organ- 
ization of  the  general  assembly,  the  powers  and  duties  of  the 
magistrates  and  other  civil  officers  were  to  be  regulated  and 
defined  by  the  assembly.  During  the  continuance  of  the  tempo- 
rary government,  all  magistrates  not  otherwise  provided  for 
were  to  be  appointed  by  the  governor. 


^^  Annals  of  Congress,  8  Cong.,  1  Sess.   (1803-1804),  1069-1076. 
20 /bid.,  1078. 


Louisiana  Government  Bill  in  the  House  139 

The  general  assembly,  or  legislature,  was  to  consist  of  a 
legislative  council  and  a  house  of  representatives,  the  latter  to 
consist  of  members  chosen  from  the  counties.  Only  free  white 
males,  owners  of  two  hundred  acres  of  land,  were  eligible  to 
election  as  representatives,  certain  residence  qualifications  being 
also  required.  No  property  qualification  was  required  of  voters, 
nor  were  the  words  ' '  white ' '  and  ' '  male ' '  used,  although  perhaps 
understood.  Representatives  were  to  serve  for  one  year.  The 
number  of  members  of  the  legislative  council  was  left  blank. 
Their  term  was  one  year.  The  governor  was  to  select  them  from 
a  list  submitted  by  the  representatives.  The  general  assembly 
was  to  be  the  law-making  body.  All  laws  had  to  receive  the 
governor's  signature.  Restrictions  of  power  over  the  primary 
disposal  of  the  soil,  taxing  the  lands  of  the  United  States,  and 
interference  with  claims  to  land,  were  made.^^ 

The  fifth  section  of  the  Senate  bill  for  the  government  of 
Louisiana  was  the  next  one  to  receive  attention.  This  section 
stipulated  that,  ' '  The  judicial  power  shall  be  vested  in  a  superior 
court,  and  in  such  inferior  courts,  and  justices  of  the  peace,  as 
the  Legislature  of  the  Territory  may,  from  time  to  time,  estab- 
lish." All  judges  and  justices  were  to  hold  office  for  the  term 
of  four  years.  The  superior  court  was  to  consist  of  three  judges, 
any  one  of  whom  should  constitute  a  court.  They  were  to  have 
jurisdiction  in  all  criminal  cases,  and  exclusive  jurisdiction  in 
capital  ones;  and  original  and  appellate  jurisdiction  in  all  civil 
cases  of  the  value  of  one  hundred  dollars.  An  important  clause 
read:  ''In  all  criminal  prosecutions  which  are  capital,  the  trial 
shall  be  by  jury  of  twelve  good  and  lawful  men  of  the  vicinage ; 
and  in  all  cases  criminal  and  civil,  in  the  superior  court,  trial 
shall  be  by  a  jury,  if  either  of  the  parties  require  it."  Then 
follows  another  provision  important  in  its  bearing  on  territorial 
government  and  the  power  of  Congress  thereover.     Once  more 


21  Ibid.,  1078-1079.     For  further  action  on  this  section,  see  beloAV. 


140       Constitutional  History  of  the  Louisiana  Purchase 

assuming  that  all  rights  and  privileges  must  be  legislated  into 
the  territories  and  that  no  part  of  the  Constitution,  by  the  mere 
act  of  acquisition,  took  effect  in  the  territory,  the  section  pro- 
vided that : 

The  inhabitants  of  the  said  Territory  shall  be  entitled  to  the  benefits 
of  the  writ  of  habeas  corpus;  they  shall  be  bailable,  unless  for  capital 
offences,  where  the  proof  shall  be  evident  or  the  presumption  great;  and 
no  cruel  and  unusual  punishments  be  inflicted.22 

George  W.  Campbell  moved  to  strike  out  the  clause  contain- 
ing a  restriction  of  the  rights  of  jury  trial  to  capital  cases  and 
to  insert  'Hhe  trial  shall  be  by  jury,  and  in  all  civil  cases  above 
the  value  of  twenty  dollars."  He  claimed  that  in  legislating 
for  Louisiana,  Congress  was  bound  by  the  Constitution  and  did 
not  have  the  right  to  establish  courts  in  that  territory  on  any 
other  terms  than  it  could  in  any  of  the  states.  '^  Whenever 
courts  were  established  in  a  Territory,  they  must  be  considered 
as  courts  of  the  United  States.  "^^  After  quoting  the  Constitu- 
tion on  the  right  of  jury  trial,  Campbell  concluded  with  the 
remark  that  the  bill  did  not  secure  that  right  as  contemplated 
by  that  instrument.^* 

The  motion  was  lost.  The  report  for  the  rest  of  the  debate 
is  not  given  because  at  this  juncture  the  reporter  left  to  attend 
the  trial  of  impeachment  of  Judge  Pickering  in  the  Senate. ^^ 
However,  it  is  noted  that  Campbell  offered  a  new  section  of  the 


22Amials  of  Congress,  8  Cong.,  1  Sess.  (1803-1804),  1128-1129. 

23  Compare  Marshall's  decision  in  American  Insurance  Co.  vs.  Canter, 
I  Peters,  546,  where  territorial  courts  are  considered  not  as  constitutional 
but  as  legislative  courts,  created  in  virtue  of  the  right  of  sovereignty  exist- 
ing in  the  Government,  or  in  virtue  of  the  power  granted  to  Congress  to 
make  all  needful  rules  and  regulations  respecting  the  territory  of  the  United 
States.  A  distinction  between  state  and  territorial  courts  was  here  recog- 
nized. 

2t  Annals  of  Congress,  8  Cong.,  1  Sess.  (1803-1804),  1129.  Cf.  Callan 
vs.  Wilson,  127  U.  S.  540;  Hawaii  vs.  ManUchi,  190  U.  S.  197;  Dorr  vs. 
U.  S.,  195  U.  S.  138;  J.  W.  Garner,  ''The  Eight  of  Jury  Trial  in  the 
Dependencies,"  in  American  Law  Review,  XL,  340-355. 

25  Annals  of  Congress,  8  Cong.,  1  Sess.   (1803-1804),  1129. 


Louisiana  Government  Bill  in  the  House  141 

bill  providing  for  the  election  of  a  legislature  by  the  people  of 
Louisiana  instead  of  a  council  appointed  by  the  President  as 
provided  for  in  the  Senate  bill.  This  amendment  suffered  the 
same  fate  as  his  previous  one.^^ 

The  Senate  bill  which  had  reached  the  House  on  Februarj^  20, 
was  discussed  at  intervals  through  the  early  weeks  of  March.^^ 
Various  were  the  interpretations  as  to  the  extent  of  the  power 
of  Congress  to  legislate  for  the  territories.  For  instance,  Leib 
of  Pennsylvania  moved  an  amendment  extending  to  the  inhab- 
itants of  Louisiana  the  Naturalization  Act  of  the  United  States.^^ 
Such  extension  was  opposed  by  Roger  Griswold,  who  deemed  it 
inexpedient  to  vest  the  courts  of  Louisiana  with  the  power  of 
naturalization.  Joseph  Clay  of  Pennsylvania  supported  the 
amendment  on  the  ground  that  it  extended  to  the  inhabitants  of 
the  territory  the  privileges  promised  them  by  the  treaty.  How- 
ever, a  residence  of  five  years  would  be  required,  since  the 
privileges  promised  were  to  be  received  under  the  Constitution. 
There  was  a  wide  difference,  he  declared,  between  naturalizing 
the  inhabitants  of  Louisiana,  and  admitting  them  into  the  Union. 
The  amendment  failed  to  pass.^® 

On  March  14,  Sloan  of  New  Jersey  introduced  an  amendment 
to  prohibit  the  admission  of  slaves  into  Louisiana,  both  from 
the  United  States  and  from  foreign  parts.  No  detailed  report 
on  this  question  is  given,  the  record  containing  the  bare  state- 


26  Ibid.,  1130. 

27  These  difficulties  were  expressed  by  Manasseh  Cutler  in  a  letter  to 
the  Eev.  Dr.  Dana,  March  3,  1804.  ''The  Democrats  of  both  Houses  are 
much  perplexed  about  establishing  a  system  of  government  in  Louisiana. 
A  bill  has  long  been  before  the  Senate,  and  has  at  length  come  to  the 
House.  It  has  been  repeatedly  taken  up  and  as  often  laid  down,  without 
making  any  progress."  Governor  Claiborne's  letter  stating  the  difficulties 
of  forming  a  government  on  the  principles  of  the  Constitution  is  referred 
to.  "His  sentiments  and  opinions  have  extremely  embarrassed  our  wor- 
shipers of  the  idol  of  Democracy,  and  what  is  to  be  done  in  this  case  is 
difficult  to  conjecture."  Cutler  and  Cutler,  Life,  Journals  and  Corre- 
spondence of  Eev.  Manasseh  Cutler,  II,  165-166. 

28  Act  of  April  14,  1802,  Laws  of  U.  States,  III,  475-478. 

29  Annals  of  Congress,  8  Cong.,  1  Sess.   (1803-1804),  1185-1186. 


142       Constitutional  History  of  the  Louisiana  Purchase 

ment  that  '/Mr.  S.  concisely  stated  his  reasons  in  favor  of  this 
^  provision,  when  the  question  was  taken,   and  the   amendment 
agreed  to — ayes  40,  noes  36. '  '^^ 

The  fourth  section  of  the  bill  was  again  taken  up  on  March 
14,  when  Early  of  Georgia  moved  a  substitute  for  this  section.^^ 
On  the  next  day  Early's  substitute  was  agreed  to.  The  House 
then  voted  to  strike  out  the  fourth  section  of  the  original  bill  and 
insert  the  new  section.  By  it,  the  legislative  power  was  to  be 
vested  in  the  governor  and  thirteen  persons  of  the  territory,  to 
be  called  the  legislative  council.  Members  of  the  council  were 
to  be  appointed  by  the  President  of  the  United  States  from 
holders  of  real  estate,  resident  at  least  one  year  in  the  territory 
and  holding  no  office  of  profit  under  the  territory,  or  the  United 
States.  Their  term  of  service  was  set  at  one  year.  The  territory 
was  to  be  divided  into  convenient  counties  by  the  legislative 
council.  After  the  first  year  members  of  the  legislative  council 
were  to  be  chosen  annually  by  persons  qualified  to  vote.  Those 
entitled  to  vote  were:  (1)  Free  white  male  persons  twenty-one 
years  of  age,  resident  in  the  territory  on  April  30,  1803,  and 
resident  therein  one  whole  year  next  before  election,  provided 
they  could  produce  satisfactory  proof  that  they  had  taken  an 
oath  of  allegiance  to  the  United  States,  agreeably  to  the  Natural- 
ization Act  of  April  4,  1802;  (2)  citizens  of  the  United  States, 
who  had  become  residents  in  the  territory  since  April  30,  or  who 
should  thereafter  become  residents,  or  who  had  resided  there  a 
year,  six  months  of  which  previous  to  the  election  must  be  in  the 
district  or  county  voted  in. 

The  legislative  council  was  to  make  all  necessary  regulations 
concerning  elections.  If  no  one  should  be  elected,  the  governor 
and  council  were  to  appoint  a  person  to  serve  for  the  district. 
The  governor,  with  the  consent  of  the  legislative  council,  could 


30  IMd.  The  lack  of  information  on  this  particular  topic  in  the  House 
renders  all  the  more  valuable  Plumer's  report  of  the  Senate  debate  on  the 
slave  question. 

31  Annals  of  Congress,  8  Cong.,  1  Sess.   (1803-1804),  1188. 


Louisiana  Government  Bill  in  the  House  143 

alter,  modify  or  repeal  the  laws  in  force  at  the  commencement 
of  the  act.  Their  legislative  powers  were  to  extend  to  all  right- 
ful objects  of  legislation,  restricted  only  by  conformity  with  the 
Constitution  of  the  United  States  and  the  prohibition  of  inter- 
ference with  the  religious  freedom  of  the  inhabitants.  The 
governor  was  to  publish  the  laws  throughout  the  territory  and 
also  to  report  them  to  the  President  to  be  laid  before  Congress. 
Restrictions  of  legislation  over  the  primary  disposal  of  soil, 
taxing  of  lands  of  the  United  States,  and  interference  of  claims 
to  land  were  made.  The  governor  could  convene  or  prorogue 
the  legislative  council  whenever  he  deemed  it  expedient.  It  was 
also  to  be  his  duty  to  inform  the  President  as  to  the  customs, 
habits,  and  dispositions  of  the  inhabitants  of  the  territory.^^ 

Certain  minor  changes  in  the  bill  led  to  conferences  between 
managers  appointed  by  the  Senate  and  the  House  for  this  pur- 
pose^^  and  the  bill  was  finally  passed.  It  was  limited  in  duration 
to  one  year  from  October  1  following  and  thence  to  the  end  of 
the  next  session  of  Congress.  The  President  was  to  appoint  a 
governor,  to  hold  office  for  four  years,  an  annual  legislative 
council,  composed  of  inhabitants  of  Louisiana,  and  judges.  The 
principle  introduced  by  the  Senate,  of  withholding  for  the  pres- 
ent the  right  of  suffrage  from  the  people  of  Louisiana  prevailed, 
subject  to  the  time  limitation  introduced  in  the  bill  by  the 
House  of  Representatives.^* 

Whether  the  differences  of  opinion  in  Congress  over  Louis- 
iana could  be  sufficiently  harmonized  to  allow  the  establishment 
of  a  more  permanent  form  of  government  for  that  territory  was 
a  question  in  which  Jefferson  professed  interest.  He  expressed 
his  fear  that  because  of  these  differences  the  present  government 
would  be  continued  another  year,  but  hoped  this  would  not  be 


32  Jftid.,  1191-1193. 

33  Ibid.,  1206,  1208,  1229,  1230. 
34jfetd,  1230. 


144       Constitutio7uil  History  of  the  Louisiana  Purchase 

the  case;  and  that  a  government  would  be  established  in  Louis- 
^    iana  capable  of  meeting  its  own  emergencies.^^ 

While  the  Breckinridge  Bill  was  still  under  discussion  in  the 
House,  Nahum  Mitchell  of  Massachusetts  wrote  an  interesting 
^  letter  to  Edward  H.  Robbins,  in  which  he  reviewed  the  whole 
Louisiana  question,  and,  incidentally,  looked  into  the  future 
with  more  or  less  prophetic  insight.  Although  possessing  a  great 
deal  of  printed  information  respecting  Louisiana,  Mitchell  said 
he  had  little  knowledge  as  to  the  disposition  of  the  lands.  He 
had  heard  that  Spain,  previous  to  putting  Louisiana  into  the 
hands  of  France,  had  made  grants  of  most  of  the  valuable  parts 
to  individuals  and  companies.  Whether  this  should  prove  to  be 
the  case  or  not,  Mitchell  believed  the  intention  of  the  Admini- 
tration  was  to  take  no  measures  for  the  immediate  settlement  of 
the  country.  On  this  matter,  however,  there  was  a  difference  of 
opinion.  One  group,  whom  Mitchell  considered  visionary,  hoped 
to  induce  the  Indians  on  the  eastern  side  of  the  Mississippi  to 
exchange  their  land  for  lands  across  the  river ;  and  to  persuade 
the  white  inhabitants  on  the  western  side  to  cross  to  the  eastern. 
Mitchell  said  this  plan  would  fail  because  the  whites  would  not 
move  back.^^ 

Another  scheme,  according  to  Mitchell,  was  to  send  all  the 
negro  slaves  from  the  southern  states  into  Louisiana,  as  soon 
as  practicable.  Again,  Mitchell  considered  the  plan  visionary, 
for  he  was  persuaded  that  the  New  England  states  would  sooner 
become  black  than  the  southern  states  white;  in  other  words, 
that  slavery  would  rather  increase  and  extend  itself  all  over  the 
Union,  than  be  diminished  and  limited,  much  less  extinguished. 
He  expressed  surprise  at  the  zeal  with  which  the  right  to  hold 
slaves  was  guarded  in  the  South.  Slaves  were  increasing  in 
numbers  faster  than  the  whites.    Then,  too,  South  Carolina  was 


35  Jefferson  to  William  Dunbar,  March  13,  1804,  in  Jefferson,  Writings 
(Memorial  ed.),  XI,  23. 

36  See  the  correspondence  between  Jefferson  and  Breckinridge,  above. 


Louisiana  Government  Bill  in  the  House  145 

importing  slaves,  and  many  more  were  imported  surreptitiously 
against  the  law  in  other  parts  of  the  Union.  Petitions  from  the 
western  part  of  the  country  for  the  admission  of  slaves  served, 
in  Mitchell's  opinion,  to  show  the  disposition  of  the  people. 

Land  jobbers  and  speculators  on  the  eastern  side  of  the 
Mississippi  were  in  favor  of  preventing  the  settlement  and  sale 
of  lands  in  Louisiana  for  the  present.  Jackson,  of  Georgia, 
whom  Mitchell  considered  as  an  index  to  the  intentions  of  the 
partj^  in  power,  said  it  would  be  ruinous  to  the  southern  states 
to  open  the  sale  of  lands  of  that  country  and  it  must  not  be 
done.^^  Mitchell  did  not  doubt  that  it  would  be  postponed  for 
the  present.  Many  of  the  politicians  of  the  South  also  opposed 
the  settlement  of  Louisiana,  fearing  it  would  draw  off  inhab- 
itants of  their  states.  Many  others,  on  the  other  hand,  were 
anxious  for  an  immediate  settlement,  because  of  the  opportunity 
for  speculation.  Mitchell  thought  the  purchase  a  foolish  and 
unconstitutional  bargain,  which  instead  of  a  source  of  revenue 
would  become  a  drain  on  the  population  and  money  of  the 
Union ;  and  would  create  no  end  of  trouble. 

Mitchell  then  turned  to  another  phase  of  the  question  in 

which  he  showed  much  keener  immediate  insight  than  many  of 

his  friends.    He  stated  it  as  his  sincere  belief  that  the  purchase 

would  have  a  beneficial  influence  on  the  ''Eastern  and  Northern 

States. ' '    On  this  point  he  wrote  : 

The  Western  section  of  this  Union  have  hitherto  been  altogether  under 
the  controul  of  Virginia  and  the  Carolinas,  because  to  them  they  looked 
for  aid  and  protection,  while  they  were  the  frontier  of  the  U.  States.  Now 
while  they  are  no  longer  a  frontier  people  and  all  fears  for  their  security, 
which  is  the  first  object,  are  at  an  end,  they  will  no  longer  consider  their 
neighbours  as  their  natural  protectors;  and  will  be  left  in  future  to  attend 
to  their  private  interest  and  prosperity.  In  viewing  them  in  this  situation 
we  shall  see  that  their  trade  and  intercourse  will  be  altogether  with  the 
commercial  states.  They  are  dependent  on  their  neighbours  for  no  single 
article  of  life,  and  whatever  they  may  receive  of  them  will  be  through  the 
hands  of  merchants  and  the  navigation  of  the  Mississippi,  Ohio,  and  other 

37  Compare  Jackson 's  speeches  in  the  Senate  on  the  Breckinridge  Bill, 
Chapter  VII. 


146       Constitutional  History  of  the  Louisiana  Purchase 

rivers  leading  into  it.  This  will  render  them  more  acquainted  with  the 
Eastern  States.  Besides  they  are  the  natural  competitors  and  rivals  of 
the  Southern  States  in  the  market.  While  I  am  penning  this  sentence  I 
overhear  several  members  talking  of  a  Northern  and  Western  coalition. 
This  language  is  already  in  vogue,  and  whether  there  will  be  any  weight 
in  my  observations  on  this  subject,  you  can  judge  better  than  1.38 

The  importance  of  a  ''Northern  and  Western  coalition"  cer- 
tainly came  to  be  recognized  and  was  to  play  a  great  political 
role  in  the  years  following  the  War  of  1812  when  New  England 
and  western  interests  were  linked  together  on  the  platform  of 
protection  and  internal  improvements. 

The  form  of  government  for  Louisiana  established  by  the 
law  of  March  26,  1804,  did  not  escape  the  attacks  of  Jefferson's 
critics.  The  New  England  Repertory  declared  the  source  of  that 
government  novel  in  the  political  progress  of  the  United  States, 
because  not  one  of  the  people  to  be  governed  would  have  a  voice 
in  the  government.  It  was  a  despotism,  with  the  President  of 
the  United  States  as  the  fountain  of  all  power.  ''Louisiana  is 
a  part  of  the  empire  of  the  United  States  or  it  is  not.  If  it  is 
not,  we  have  nothing  to  do  with  it.  If  it  is,  the  establishment 
of  a  monarchy  over  a  large  country  appertaining  to  the  United 
States,  is  a  gross  violation  of  the  spirit  of  the  Constitution."^^ 

The  New  York  Herald  stated  that  a  perusal  of  the  sketch  of 
the  debates  in  Congress  would  show  that  the  "friends  to  the 
equal  rights  of  man"  were  considerably  hampered  by  the  diflfi- 
culties' presented  in  the  Breckinridge  Bill.  The  proposal  of  the 
President  "to  erect  a  government  about  as  despotic  as  that  of 
Turkey  in  Asia, ' '  had  the  approval  of  his  friends,  but  they  were 
afraid  of  consequences ;  while  the  Herald  said  they  might  well  be, 
"unless  they  can  contrive  to  silence  all  the  presses  in  the 
nation.  "*« 


38Nahum  Mitchell  to  Edw.  H.  Bobbins,  Washington,  March  12,  1804, 
in  EohUns  Papers,  1800-1838,  VII. 

s^  New  England  Bepertory,  Tuesday,  March  6,  1804.  Copied  in  Thomas's 
Massachusetts  Spy,  or  Worcester  Gazette,  Wednesday,  March  14. 

40  New  York  Herald,  Wednesday,  March  7,  1804. 


CHAPTER  IX 
PROBLEMS  OF  TERRITORIAL  GOVERNMENT 

The  inhabitants  of  Louisiana  had  expected  a  more  liberal 
form  of  government  and  were  greatly  disappointed  in  the  one 
provided.  The  report  of  the  passage  of  a  law  by  the  Senate 
prohibiting  the  importation  of  foreign  slaves  into  Louisiana 
caused  great  agitation,  according  to  Governor  Claiborne.  The 
people  considered  it  a  serious  blow  at  the  commercial  and  agri- 
cultural interests  of  the  province.  Importation  of  slaves  into 
South  Carolina  served  to  increase  discontent.  The  people  gen- 
erally could  not  be  made  to  understand  the  present  power  of  the 
state  authorities  with  regard  to  the  importation  of  such  persons. 
Many  thought  Congress  connived  at  this.^  A  mass  meeting  was 
held  to  protest  to  Congress  on  the  question  of  the  slave  trade, 
commercial  restrictions,  and  government  in  general,  and  a  com- 
mittee was  appointed  to  draw  up  a  memorial.^ 

Prohibition  of  the  importation  of  foreign  slaves  was  a  griev- 
ance which  was  raised  continually,  and  will  be  referred  to  again. 

Whether  the  governor's  voice  was  final  in  judicial  matters 
in  the  new  territory  was  a  question  Jefferson  was  called  upon 
to  answer.  Under  the  Spanish  Government  the  Louisianians  had 
been  allowed  an  appeal  from  their  governor  to  the  governor 
general  in  Cuba.  Such  an  appeal  from  a  decision  of  Governor 
Claiborne  came  to  the  President.  Jefferson  did  not  believe  that 
Congress  when  it  authorized  him  to  give  any  person  all  the 
power  of  the  officers  of  the  ''then  existing  government,"  had 
intended  to  include  the  governor  general  of  Cuba  or  the  King 
of  Spain.     After  asking  the  advice  of  Attorney  General  Levi 

1  Claiborne  to  Madison,  March  10,  1804,  in  Claiborne  Papers,  '' Clai- 
borne's Correspondence  relative  to  Louisiana, '^  I. 

2  Claiborne  to  Madison,  March  16,  1804,  iMd. 


148       Constitutional  History  of  the  Louisiana  Purchase 

Lincoln  on  this  point,^  Jefferson  informed  Claiborne  that  it  was 
*  an  error  to  presume  that  there  was  an  appeal  to  the  President. 
No  authority  had  yet  been  created  paramount  to  that  of  the 
governor.  Such  being  the  case,  Jefferson  remanded  such  matters 
to  Claiborne  for  a  second  consideration,  the  remanding  ''to  be 
considered  as  a  measure  of  course,  and  not  conveying  in  the 
slightest  degree  an  opinion  or  even  a  suspicion  that  there  is  or 
is  not  error  in  the  first  proceedings."* 

The  course  of  territorial  government  did  not  run  as  smoothly 
as  might  have  been  desired  by  those  in  authority.  The  corre- 
spondence which  passed  between  Governor  Claiborne  and  the 
President  and  Secretary  of  State  in  Washington  is  filled  with 
various  opinions  and  recommendations.  After  the  passage  of 
the  Breckinridge  Bill,  Jefferson  asked  Claiborne  to  communicate 
to  him  the  names  of  the  men  best  fitted  to  be  appointed  members 
of  the  legislative  council.  Jefferson  thought  a  mere  majority 
of  them  ought  to  be  Americans  and  the  rest  French  or  Spanish.^ 
Desirous  of  placating  the  native  inhabitants  though  he  might  be, 
Jefferson  nevertheless  wanted  to  keep  the  control  in  American 
hands. 

Claiborne  kept  the  federal  authorities  well  informed  on  con- 
ditions in  the  territory  under  his  control,  at  least  so  far  as 
frequent  letters  could  do  it.  The  extension  of  registry  to  vessels 
owned  by  Louisianians  gave  general  satisfaction  and  removed 
one  cause  of  discontent.  The  prohibition  of  the  importation  of 
foreign  slaves  was  still  viewed  by  the  citizens  as  a  great  griev- 
ance,® yet  quiet  prevailed  and  Claiborne  expressed  the  opinion 

3  Jeff erson  to  the  Atty.  Genl.,  March  14,  [18] 04,  in  Jefferson  Papers, 
''Letters  from  Jefferson,  1st  Series,  1802-1803,"  IX,  (39). 

4  Jefferson  to  Governor  Claiborne,  March  18,  [18]04,  in  ihid.,  (44). 
Quoted  in  part  in  J.  F.  H.  Claiborne,  Mississippi  as  a  Province,  Territory 
and  State,  I,  251-252. 

5  Jefferson  to  Governor  Claiborne,  April  17,  1804,  in  Jefferson  Papers, 
"Letters  from  Jefferson,  1st  Series,"  IX,    (67). 

6  Claiborne  to  Jeffierson,  April  15,  1804,  in  Jefferson  Papers,  ''Letters 
received  at  Washington,  2d  Series,"  XIX,  (3). 


Problems  of  Territorial  Government  149 

that  unless  the  natives  of  the  United  States  should  excite  dis- 
content, the  Louisianians  would  become  well  pleased  with  the 
temporary  government.^ 

Only  four  days  after  the  writing  of  this  letter  the  Mayor  of 
New  Orleans,  Etienne  de  Bore,  resigned.  The  municipal  body, 
composed  of  a  mayor,  a  council  of  twelve,  and  a  clerk,  which 
had  been  established  by  Laussat  in  place  of  the  abolished  cabildo, 
had  been  carried  over  under  the  government  of  the  United  States. 
Bore,  in  an  address  to  the  council.  May  16,  1804,  asked  that  a 
formal  protest  be  made  against  the  form  of  government  on  the 
ground  that  it  annihilated  the  rights  of  the  Louisianians.  He 
held  it  to  be  a  departure  from  the  principles  of  American  gov- 
ernment and  an  infringement  of  the  natural  rights  of  the  people 
of  the  territory  and  of  the  third  article  of  the  treaty  of  cession. 
The  council  declining  to  make  such  a  protest  because  it  believed 
this  to  be  the  province  of  the  people  at  large  and  not  the 
municipal  council,  Bore  resigned.^ 

Other  evidences  of  discontent  led  Claiborne  to  write  that  as 
soon  as  the  state  of  society  would  permit,  he  ''would  like  to  see 
the  representative  system  in  its  fullest  latitude  extended  to  this 
territory. ' '  However,  he  thought  Congress  had  been  wise  in 
not  immediately  conferring  the  privilege  of  self-government  on 
the  people,  as  this  would  probably  have  proved  a  misfortune  to 
Louisiana.  The  natives  of  Louisiana  he  considered  a  pacific, 
amiable  people.  Adventurers  from  outside  were  the  ones  who 
caused  trouble  among  a  credulous  people.^  Who  some  of  these 
''adventurers"  were  Claiborne  also  informed  Madison.  Among 
the  most  distinguished  and  active  of  those  who  disapproved  of 
the  measures  of  the  Government  in  relation  to  Louisiana  was 


7  Claiborne    to    Madison,    May    12,    1804,    in    Madison   Papers,    XXVI, 
^'Writings  to  Madison,  Nov.  6,  1803-Aug.  21,  1804." 

8  Fortier,  History  of  Louisiana,  III,  14-15. 

9  Claiborne  to  Jefferson,  May  29,  1804,  in  Jefferson  Papers,  *' Letters 
received  at  Washington,  2d  Series,"  XIX,  (7). 


150       Constitutional  History  of  the  Louisiana  Purchase 

Edward  Livingston.^^  Another  of  the  discontents  was  Daniel 
Clark,  whom  Claiborne  considered  disgruntled  because  he  had 
expected  a  greater  reward  for  his  services  than  he  received.^^ 

Livingston  busied  himself  with  a  draft  of  a  memorial  to 
Congress  protesting  against  the  government  of  Louisiana.  He 
took  the  stand  that,  under  the  treaty,  Louisiana  was  entitled  to 
immediate  admission  into  the  Union  as  a  state.  Claiborne  sus- 
pected Livingston  of  ulterior  motives  because  it  seemed  to  him 
impossible  'Hhat  a  man  of  reflection,  can  suppose  the  people  of 
Louisiana  at  this  time,  prepared  for  a  complete  Representative 
System.  "^^  Claiborne  did  favor,  however,  the  introduction  of 
representative  government  as  soon  as  possible.  He  expressed  a 
desire  to  see  the  legislative  council  elected  by  the  people. ^^ 

The  troublesome  third  article  of  the  treaty  on  which  the 
Louisianians  were  to  base  their  grounds  for  complaint  in  their 
memorial  to  Congress,  needed  interpretation  from  other  stand- 
points. One  of  these  led  to  a  further  enunciation  by  Jefferson 
of  the  meaning  of  the  article.  Among  other  claims  under  it  were 
those  of  a  monopoly  of  Indian  commerce.^*  Jefferson  considered 
the  third  article  to  have  been  worded  with  ' '  remarkable  caution ' ' 


10  Livingston  had  moved  to  New  Orleans  in  1804  and  was  destined  to 
play  an  important  part  in  the  history  of  the  state  of  Louisiana.  Aside  from 
his  connection  with  the  famous  Batture  Case  he  was  the  author  of  a  legal 
code  for  Louisiana,  acted  as  its  representative  in  Congress  in  the  Eighteenth, 
Nineteenth  and  Twentieth  Congresses,  and  served  as  United  States  senator 
from  Louisiana  from  December  7,  1829,  until  his  resignation,  May  24,  1831. 
Livingston  was  secretary  of  state  from  May  24,  1831,  to  May  29,  1833, 
under  President  Jackson,  and  Minister  Plenipotentiary  to  France  May  29 
to  April,  1835.     He  died  May  23,  1836. 

11  Claiborne  to  Madison,  June  3,  1804  (Private),  in  Madison  Papers, 
*' Writings  to  Madison,"  XXVI.  Clark  was  an  old  resident  of  Louisiana, 
having  been  a  subject  of  Spain  there  previous  to  the  American  occupation. 
Jefferson  had  appealed  to  him  for  information  concerning  the  territory. 
Jefferson  to  Clark,  July  17,  1803,  in  Jefferson,  Writings  (Memorial  ed.),  X, 
406-407.  Clark  was  selected  as  delegate  from  the  territory  of  Orleans  to 
the  Ninth  Congress. 

12  Claiborne  to  Madison,  June  29,  1804  (Private  and  confidential),  in 
Madison  Papers,  ''Writings  to  Madison,"  XXVI. 

13  Claiborne  to  Jefferson,  July  1,  1804,  in  Jefferson  Papers,  ''Letters 
received  at  Washington,  2d  Series,"  XIX,  (10). 

14  The  reclamations  of  Girod  &  Chote  against  the  claims  of  Bastrop. 


Problems  of  Territorial  Government  151 

on  the  part  of  the  American  negotiators.  The  people  of  Louis- 
iana according  to  him, 

shall  continue  under  the  protection  of  the  treaty,  until  the  principles  of  our 
constitution  shall  be  extended  to  them,  when  the  protection  of  the  treaty 
is  to  cease,  and  that  of  our  own  principles  to  take  its  place.  But  as  this 
could  not  be  done  at  once,  it  has  been  provided  to  be  as  soon  as  our  rules 
will  admit.  Accordingly  Congress  has  begun  by  extending  about  20  par- 
ticular laws  by  their  titles,  to  Louisiana.  Among  these  is  the  act  concern- 
ing intercourse  with  the  Indians,  which  establishes  a  system  of  commerce 
with  them  admitting  no  monopoly.  That  class  of  rights  therefore  are  now 
taken  from  under  the  treaty  &  placed  under  the  principles  of  our  laws.is 

That  definite  acts  of  legislation  were  necessary  to  bring  about 
a  change  in  the  laws  of  the  territory  acquired  was  emphasized 
in  another  letter  of  Jefferson 's  at  a  later  date,  when  he  wrote : 
''Louis  XIV  having  established  the  Constumes  de  Paris  as  the 
law  of  Louisiana,  this  was  not  changed  by  the  mere  act  of  trans- 
fer ;  on  the  contrary,  the  laws  of  France  continued  and  continues 
to  be  the  law  of  the  land,  except  where  specially  altered  by  some 
subsequent  edict  of  Spain  or  act  of  Congress.  "^^ 

The  doubt  which  existed  in  the  minds  of  the  government 
officials  over  the  real  status  of  the  Louisianians  found  vent  in 
hostile  newspaper  comment  of  which  the  following  is  typical : 

Mr.  Jefferson  gave  us  first  to  expect  they  were  immediately  to  be  in- 
ducted to  the  blessings  of  self-government,  and  were  to  be  made  citizens, 
as  soon  as  convenient,  implying  a  short  time.  Vice  Eoy  Claiborne  talked  to 
them  sometime  as  citizens,  sometimes  as  aliens;  but  in  his  official  letter, 
gave  Government  to  understand  that  the  people  we  had  been  buying  must 
be  subjects,  (not  citizens)  for  fifty  years  to  come.  But  in  a  Baltimore 
paper  we  are  again  bewildered  by  the  following  toast — *  the  people  of  Louis- 
iana— no  longer  subjects   but  citizens.'  "i7 

Claiborne's  appointment  as  governor  of  Louisiana  was  a 
temporary  one.     He,  himself,  thought  that  the  office  would  be 


15  Jefferson  to  Secretary  of  State  Madison,  July  14,  [18]  04,  in  Jefferson, 
Writings  (Ford,  ed.),  VIII,  313. 

16  Jefferson  to  the  Secretary  of  State,  May  19,  1808,  in  Jefferson,  Writ- 
ings (Memorial  ed.),  XII,  58-59. 

17  The  Eepertory  (Boston),  Tuesday,  May  29,  1804. 


152       Constitutional  History  of  the  Louisiana  Purchase 

bestowed  later  on  someone  else.  A  report  that  Monroe  would 
probably  be  the  permanent  governor  of  Orleans  Territory  reached 
Claiborne  and  he  expressed  his  belief  that  this  would  be  very 
pleasing  to  the  Louisianians.^^  Monroe  was  offered  the  position 
but  deelined.^^ 

In  sending  to  Claiborne  his  commission  as  governor  of 
Orleans  Territory,  Jefferson  stated  frankly  that  the  office  was 
''originally  destined  for  a  person  (LaFayette)  whose  great  ser- 
vices and  established  fame  would  have  rendered  him  peculiarly 
acceptable  to  the  nation  at  large.  Circumstances  however  exist 
which  do  not  now  permit  his  nomination,  &  perhaps  may  not  at 
any  time  hereafter.  "^^  Claiborne  acknowledged  receipt  of  his 
commission,  October  3,  1804.^^  John  Quincy  Adams  expected 
that  some  opposition  would  be  made  to  the  reappointment  of 
Claiborne  but  when  the  vote  was  taken  in  the  Senate  only  one 
voice  answered  in  the  negative.^^ 

18  Claiborne  to  Madison,  June  9,  1804,  in  Claiborne  Papers,  ' '  Claiborne 's 
Correspondence   relative   to   Louisiana,"    II. 

19  Jefferson,  Writings  (Ford,  ed.),  VIII,  288,  290;  IX,  37.  Monroe, 
Writings  (Hamilton,  ed.),  IV,  153,  156,  477-478;  V,  109-111. 

Andrew  Jackson  hoped  that  he  might  be  appointed  to  this  position.  His 
ambitions  in  this  respect  are  revealed  in  a  letter  to  his  friend  Representa- 
tive G.  W.  Campbell,  April  28,  1804.  This  letter  is  printed  in  full  in  James 
Parton,  Life  of  Andrew  Jackson,  I,  237-238.  It  is  mentioned  in  Parton, 
Life  of  Thomas  Jefferson,  656. 

20  Jefferson  to  Claiborne,  August,  30,  1804,  in  Jefferson  Papers,  ''Letters 
from  Jefferson,  1st  Series,"  IX,  (153).  J.  F.  H.  Claiborne,  Mississippi 
as  a  Province,  Territory  and  State,  I,  251.  In  his  "Memorandum  of  the 
Eighth  Congress,"  under  date  of  December  10,  1804,  Plumer  wrote:  ''The 
fact  was  I  did  not  then  know  it — president  originally  intend  the  Marquis 
La  Fayette  for  that  office." 

Although  wishing  to  appoint  Lafayette  to  the  governorship,  Jefferson, 
according  to  Parton,  "demed  it  best  not  to  gratify  a  sentiment  by  an  act 
which  might  be  construed  as  a  reflection  upon  the  seller  [Napoleon]." 
James  Parton,  Life  of  Thomas  Jefferson,  656. 

21  Claiborne  to  Madison,  October  3,  1804,  in  Claihorne  Papers,  "Clai- 
borne's Correspodence  relative  to  Louisiana,"  II. 

22  John  Quincy  Adams,  Memoirs,  I,  321.  December  12.  1804.  John 
Randolph  referred  to  Claiborne  as  a  "pompous  nothing."  News  of  com- 
plaint from  Louisiana  called  from  Randolph  the  expression  of  a  wish  to 
send  some  thousands  of  troops  into  that  territory  "who  can  speak  a  lan- 
guage perfectly  intelligible  to  the  people  of  Louisiana,  whatever  that  of 
their  Governor  may  be."     Henry  Adams,  John  Randolph,  117-118. 


Problems  of  Territorial  Government  153 

Attacks  on  Governor  Claiborne  and  the  administration  of  his 
power  became  so  bitter  that  he  felt  it  necessary  to  send  a  lengthy 
refutation  and  explanation  to  Madison.  One  political  pamphlet 
in  particular,^^  seemed  to  demand  an  answer.  Admitting  that 
some  of  the  statements  made  against  him  were  true,  Claiborne 
said  others  were  not.  For  instance,  it  was  untrue  that  Americans 
held  all  the  lucrative  positions  under  the  temporary  government ; 
many  were  held  by  native  Louisianians.  After  a  defense  of  his 
government,  he  declared  that  the  third  article  of  the  treaty 
rendered  changes  in  the  old  system  necessary  to  prepare  the 
people  for  statehood.  He  said  he  was  forced  by  conditions  to 
assume  great  judicial  powers  against  his  own  wishes.^* 

Meanwhile  the  memorial  to  Congress  had  been  put  in  circula- 
tion. Claiborne,  after  seeing  one  sheet  of  the  original,  stated 
that  it  was  in  the  handwriting  of  Edward  Livingston.  He  did 
not  doubt  that  all  of  it  had  been  written  by  Livingston,  with  the 
aid  of  Daniel  Clark  and  Evan  Jones.-^ 

If  Claiborne's  information  was  correct,  there  were  not  many 
people  present  at  the  meeting  held  for  the  drawing  up  of  the 
memorial.  It  was  afterwards  carried  through  the  territory  and 
many  signed  without  reading  it,  while  others  did  so  with  no 
understanding  of  its  contents.  The  names  of  others  were  affixed 
without  their  seeing  it.  Louisianians,  continued  Claiborne,  had 
never  before  been  called  upon  to  sign  a  political  paper.  Some 
thought  their  grievances  were  real,  others  were  made  to  think  so. 


23  Esquisse  de  la  situation  politique  et  civile  de  la  Louisiane,  depuis 
le  30  Novemhre  1803  jusqu'  au  i^r  Octohre  1804.  Par  un  Louisianais  a  la 
Nouvelle-Orleans.     This  pamphlet  was  translated  into   English. 

24  Claiborne  to  Madison,  October  16,  1804,  in  Claiborne  Papers,  ' '  Clai- 
borne's  Correspondence  relative  to  Louisiana,"  II;  Eobertson,  Louisiana 
under    the  Eule  of  Spai7i,  France,  and  the  United  States,  II,  268-278. 

25  Claiborne  to  Madison,  July  13,  1804  (Private),  in  Madison  Papers, 
''Writings  to  Madison,"  XXVI;  also  Claiborne  to  Madison,  July  26,  1804, 
in  Claiborne  Papers,  ''Claiborne's  Correspondence  relative  to  Louisiana," 
II,  wherein  Claiborne  enclosed  a  paper  containing  a  copy  of  the  memorial, 
and  added  that  Livingston  acknowledged  being  the  author. 


154       Const  it  uticytml  History  of  the  Louisiana  Purchase 

Few  were  really  interested  in  the  fate  of  the  memorial,  except 
as  it  related  to  the  African  slave  trade.  He  did  not  expect  any 
disturbance  if  the  petition  were  denied.^® 

Despite  their  anxiety  over  the  question  of  the  African  slave 
trade,  it  cannot  be  said  that  the  political  situation  of  the  inhab- 
itants of  Louisiana  was  altogether  lost  sight  of.  For  instance, 
''Fellow  Citizen"  opposed  the  interpretation  of  the  words  "as 
soon  as  possible"  to  mean  never  or  a  time  so  indefinite  that  it 
might  never  arrive.  He  declared  that  the  government  was  more 
oppressive  than  that  which  the  United  States  had  spurned  in 
1776,  and  asked  the  citizens  to  unite  in  a  respectful  demand 
upon  the  Government  of  the  United  States  for  those  privileges 
to  which  they  were  entitled  by  nature  and  compact.^^ 

A  committee  which  met  in  New  Orleans,  August  9,  1804, 
adopted  a  report  laying  before  the  citizens  of  Louisiana  the 
address  which  the  United  States  in  Congress  assembled  sent  to 
Canada,  October  26,  1774;  and  asking  the  citizens  what  relation 
there  was  between  the  present  situation  of  the  inhabitants  of 
Louisiana  and  that  of  Canada  at  the  time  when  Congress  put 
the  Canadians  in  mind  of  their  rights  and  privileges,  which  the 
agents  of  England  would  not  allow  them.  The  report  bore  the 
signatures  of  Bore,  president,  and  Robelot,  secretary  of  the  com- 
mittee.^* 

Interspersed  among  general  criticisms  of  the  system  of  gov- 
ernment were  personal  attacks  on  the  governor.  The  latter  led 
to  a  defense  of  Claiborne  by  James  Workman  who  wrote  under 
the  nom  de  plume  of  ' '  Laelius. ' '  In  answering  charges  brought 
against  Claiborne,  ''Laelius"  admitted  that  it  was  to  be  re- 


26  Claiborne  to  Jefferson,  October  27,  1804,  in  Jefferson  Papers,  '^  Let- 
ters received  at  Washington,  2d  Series,"  XIX,  (14).  Also,  Claiborne  to 
Madison,  November  5,  1804  (Private),  in  Madison  Papers,  <' Writings  to 
Madison,"  XXVI. 

27  Louisiana  Gazette,  August  7,  1804. 

28  Ihid.,  August  14,  1804. 


Problems  of  Territorial  Government  155 

gretted  that  Congress  had  not  immediately  established  some 
temporary  legislative  and  judicial  authorities,  composed  of  the 
best  informed  men  who  could  have  been  secured.  Claiborne, 
however,  had  no  power  to  bring  this  about,  so  could  not  be 
blamed.^^ 

This  called  forth  a  lengthy  reply  in  which  all  the  complaints 
against  the  governor  and  the  government  were  reiterated.^° 

The  memorial  to  Congress  having  been  duly  circulated  and 
signed,  three  agents  were  selected  to  bear  it  to  Congress.  They 
were  Messrs.  Pierre  Derbigny,  Jean  Noel  Destrehan  and  Pierre 
Sauve,  all  natives  of  France.  Derbigny,  Claiborne  described  as 
"a  man  of  good  information,  and  I  believe  of  strict  integrity; 
pleased  with  the  principles  of  our  Government  but  much  attached 
to  his  native  country."  Destrehan,  he  characterized  as  "a 
Frenchman  in  politics  and  affection,"  ''one  of  the  tools  of  M. 
Laussat  and  greatly  mortified  at  the  cession  of  Louisiana  to  the 
United  States."  He  would  endeavor  to  be  the  most  prominent 
man  in  the  mission.  Sauve  was  ''an  able  good  man,  a  wealthy 
planter  universally  esteemed  by  his  neighbors  and  will  be  a  good 
citizen  under  our  Government;  but  I  fear  he  will  take  little 
part  in  the  agency."  All  were  warm  advocates  of  the  slave 
trade.^^ 


29  Ibid.,  November  9,  1804. 

30  Ihid.,  January  11,  15,  22,  29,  1805.  We  are  indebted  to  Isaac  Briggs 
for  information  concerning  the  alignment  of  forces  in  this  newspaper  war. 
Claiborne's  chief  opponents  were  Livingston,  I.  B.  Prevost,  and  Daniel 
Clark,  who  appeared  under  various  signatures,  principally,  ''An  Inhab- 
itant," and  "Public  Accuser."  The  friends  of  the  governor  were  Lewis 
Kerr  under  the  signature  of  ''Curtius"  and  ''Projector,"  and  James 
Workman  as  "Laelius. "  Isaac  Briggs  to  Jefferson,  February  9,  1805,  in 
Jefferson  Papers,  "Letters  received  at  Washington,  2nd  Series,"  IX,  (18). 

Briggs  had  been  appointed  surveyor  of  lands  south  of  Tennessee  by 
Jefferson,  who  characterized  him  as  "a  Quaker,  a  sound  republican  and 
of  a  pure  and  unspotted  character,"  highly  qualified  for  his  new  task. 
Jefferson  to  Claiborne,  May  24,  1803,  in  Jefferson,  Writings  (Memorial 
ed.),  X,  394-395. 

31  Claiborne  to  Madison,  July  13,  1804  (Private),  in  Madison  Papers, 
"Writings  to  Madison,"  XXVI. 


156       Constitutional  History  of  the  Louisiana  Purchase 

An  interesting  picture  of  the  memorialists  in  Washington  is 
given  by  Senator  Plumer,  who  with  Pickering  and  others  enter- 
tained them  at  dinner.  He  describes  them  as  all  Frenchmen, 
of  whom  Derbigny  and  Sauve  could  speak  English  fluently, 
gentlemen  of  respectability,  men  of  talents,  literature  and  gen- 
eral information,  men  of  business,  and  well  acquainted  with  the 
world.  They  had  little  of  "French  frippery"  about  them  and 
resembled  New  Englanders  more  than.  Virginians.  Sauve  had 
one  hundred  and  fifty  acres  of  sugar  cane,  and  Destrehan  two 
hundred.  The  latter  claimed  that  it  would  take  sixty  negroes 
to  manage  his  crop.  He  stated  that  his  ground  generally  pro- 
duced on  the  average  by  the  acre  one  hogshead  of  sugar  weighing 
twelve  hundred  pounds  and  a  hogshead  of  molasses. 

The  memorialists  complained  of  the  government  which  Con- 
gress had  established  over  them  at  the  last  session.  Plumer 
continues : 

They  say  nothing  will  satisfy  that  people  but  an  elective  government. 
That  under  the  Spanish  government  they  paid  only  six  per  cent  duty  upon 
their  imports  &  exports;  &  the  whole  charge  of  their  religion  &  government 
was  then  supported  by  the  Crown.  That  the  duties  they  now  paid  are 
greater  than  what  they  then  paid — &  are  themselves  beside  obliged  to  sup- 
port their  religion  &  internal  government.  So  that  they  now  pay  more 
money  for  public  uses  than  when  they  were  subjects  of  a  royal  government, 
&  enjoy  less  real  liberty.  That  Claiborne,  the  present  governor,  is  unable 
to  speak  a  word  of  French,  the  language  that  is  most  generally  used  in 
that  country.  That  the  proceedings  in  the  courts  of  law  are  in  a  language 
that  most  of  the  people  do  not  understand — That  they  have  in  many 
instances  been  convicted  of  breaches  of  laws  of  the  existence  of  which  they 
were  ignorant.  That  Claiborne  is  incompetent  to  discharge  the  duties  of 
Government. 

That  the  President  had  selected  some  very  respectable  men  whom  he 
has  appointed  members  of  the  legislative  Council.  That  out  of  these  all 
except  three  have  positively  declined  the  appointments.  That  no  man  who 
wishes  to  enjoy  the  friendship  &  esteem  of  the  people  of  that  country  can 
accept  of  an  office  under  the  existing  system  of  government. 

They  say  that  they  have  visited  Mr.  Jefferson — that  he  has  not  made 
any  enquiries  of  them  relative  either  to  their  government,  or  the  civil  or 


ProMems  of  Territorial  Government  157 

natural  history   of   their   country — That   he   studiously   avoided   conversing 
with  them  upon  every  subject  that  had  relation  to  their  mission  here. 

They  say  that  the  city  of  New  Orleans  is  situated  on  the  banks  of  the 
Mississippi — that  those  banks  are  from  one  hundred  to  120  feet  deep — And 
that  a  considerable  part  of  the  city  is  in  danger  of  being  undermined  by 
the  stream — the  land  being  sandy — That  it  will  require  immense  expence  to 
secure  the  town — that  they  must  either  sink  rafts  covered  with  the  rocks  on 
the  bank  next  to  the  city,  or  cut  down  the  bank  on  the  opposite  side  of 
the  river,  That  the  country  around  the  city  &  for  a  very  considerable  dis- 
tance up  the  river  is  very  good  land  for  the  width,  on  an  average,  of 
three  quarters  of  a  mile  from  the  river — that  beyond  that  distance  from 
the  river  much  of  the  land  is  a  sunken  swamp.  That  there  is  in  the 
Country  a  considerable  of  good  upland.32 

The  memorial  was  presented  to  the  Senate,  December  31, 
1804,  by  Giles  of  Virginia.  After  an  examination  of  the  form 
of  government  laid  down  for  the  territory  of  Orleans,  which 
showed  that  the  people  in  the  territory  had  no  voice  in  their 
government,  the  memorial  proceeded  to  state  more  specific  griev- 
ances, using  language  which  must  have  had  a  decidedly  familiar 
sound  for  those  who  remembered  the  statement  of  grievances  of 
the  American  colonists  against  the  British  Government.  Objec- 
tions were  made  to  a  governor  whom  the  people  had  not  chosen,, 
and  who  might  be  ignorant  of  the  language  and  institutions  of 
the  people.  This  government  was  vested  with  all  executive  and 
almost  unlimited  legislative  authority,  because  of  the  power  of 
the  executive  in  the  choice  of  members  of  the  council  and  his 
authority  to  prorogue  them  freely.     The  memorial  continued: 

Taxation  without  representation,  an  obligation  to  obey  laws  without 
any  voice  in  their  formation,  the  undue  influence  of  the  executive  upon 
legislative  proceedings,  and  a  dependent  judiciary,  formed,  we  believe,  very 
important  articles  in  the  list  of  grievances  complained  of  by  the  United 
States,  at  the  commencement  of  their  glorious  contest  for  freedom;  the 
opposition  to  them,  even  by  force,  was  deemed  meritorious  and  patriotic, 

32  Plumer,  "Memorandum,"  Saturday,  December  15,  1804.  Publication 
of  Plumer 's  account  at  so  great  length  seems  justified  because  of  the 
amount  of  information  it  contains,  and  because  it  has  never  before  appeared 
in  print.  See  my  article  on  ''The  Louisiana  Memorialists  to  Congress, 
1804,"  in  the  Louisiana  Historical  Quarterly,  I,  99-102. 


158       Constitutional  History  of  the  Louisiana  Purchase 

and  the  rights  on  which  that  opposition  was  founded  were  termed  funda- 
mental, indefeasible,  self-evident,  and  eternal;  they  formed  as  your  country 
then  unanimously  asserted,  the  only  rational  basis  on  which  Government 
could  rest;  they  were  so  plain,  it  was  added,  as  to  be  understood  by  the 
weakest  understanding;  not  capable  of  alienation,  they  might  always  be 
reclaimed;  unsusceptible  of  change,  they  were  the  same  at  all  times,  in 
all  climates,  and  under  all  circumstances;  and  the  fairest  inheritance  for 
our  posterity,  they  should  never,  it  was  firmly  asserted ...  be  abandoned  but 

with  life Are  truths,  then,  so  well  founded,  so  universally  acknowledged, 

inapplicable  only  to  us?  Do  political  axioms  on  the  Atlantic  become  prob- 
lems when  transferred  to  the  shores  of  the  Mississippi? 

Keferring  to  the  third  article  of  the  treaty,  the  memorialists 
interpreted  it  to  mean  that  there  should  be  no  longer  delay  in 
the  incorporation  of  the  inhabitants  into  the  Union  than  was 
required  to  pass  the  necessary  laws  and  ascertain  the  represen- 
tation to  which  they  were  entitled.  The  government  act  under 
fire  did  not  satisfy  the  requirement  of  this  provision  of  the 
treaty.    On  this  point  the  memorial  ran : 

A  Territory  governed  in  the  manner  it  directs  may  be  a  province  of  the 
United  States,  but  can  by  no  construction  be  said  to  be  incorporated  into 
the  Union.  To  be  incorporated  into  the  Union  must  mean  to  form  a  com- 
ponent part  of  it;  but  to  every  component  part  of  the  United  States  the 
constitution  has  guaranteed  a  republican  form  of  Government,  and  this 
. . .  has  no  one  principle  of  republicanism  in  its  composition ;  it  is  therefore 
not  a  compliance  with  the  letter  of  the  treaty,  and  is  totally  inconsistent 
with  its  spirit,  which  certainly  intends  some  stipulations  in  our  favor.  For 
if  Congress  may  govern  us  as  they  please,  how  are  we  benefitted  by  its 
introduction?  If  any  doubt,  however,  could  possibly  arise  on  the  first 
member  of  the  sentence,  it  must  now  vanish  by  a  consideration  of  the 
second,  which  provides  for  their  admission  to  the  rights,  privileges,  and 
immunities  of  citizens  of  the  United  States.  But  this  Government ...  is 
totally  incompatible  with  those  rights.  Without  any  vote  in  the  election 
of  our  Legislature,  without  any  check  upon  our  executive,  without  any  one 
incident  of  self-government,  what  valuable  'privilege'  of  citizenship  is 
allowed  us,  what  'right'  do  we  enjoy,  of  what  'immunity'  can  we  boast, 
except,  indeed,  the  degrading  exemption  from  the  cares  of  legislation,  and 
the  burden  of  public  affairs.  . .  .33 

^^  American  State  Papers,  Miscellaneous,  I,  396-398  ;^miaZs  of  Congress, 
8  Cong.,  2  Sess.  (1804-1805),  Appendix,  1597-1606. 


Problems  of  Territorial  Government  159 

In  the  next  part  of  the  memorial,  that  dealing  with  the  pro- 
hibition of  the  slave  trade,  a  clear  demand  was  made  for  the 
very  thing  which  at  a  later  date  was  called  ''popular  sov- 
ereignty." Reference  was  made  to  the  fact  that  while  the 
African  trade  was  absolutely  prohibited  in  the  new  territory,  it 
was  free  to  the  Atlantic  states  and  as  far  as  related  to  procuring 
slaves  from  other  states,  it  was  permitted  even  in  the  Territory 
of  Mississippi.  ' '  We  only  ask, ' '  ran  the  memorial,  ' '  the  right  of 
deciding  it  ourselves,  and  of  being  placed  in  this  respect  on  an 
equal  footing  with  other  States."  Slave  labor  was  declared  to 
be  peculiarly  necessary  for  the  species  of  cultivation  carried  on 
and  for  the  repair  of  the  levees,  the  heat  and  moisture  being 
intolerable  to  whites.  The  prohibition  of  the  slave  traffic  would 
mean  the  cessation  of  cultivation.^* 

A  similar  remonstrance  against  the  form  of  government 
established  in  the  territory  was  communicated  to  the  House  of 
Representatives,  January  4,  1805.  One  of  the  grievances  cited 
was  that  of  the  division  of  Louisiana  into  two  parts,  because 
without  the  division  there  would  be  sufficient  population  to 
admit  Louisiana  into  the  Union  as  a  state.  This  division,  it  was 
argued,  was  authorized  neither  by  the  Constitution,  nor  in  the 
treaty  with  the  French  Republic.  Endless  divisions  might  post- 
pone indefinitely  the  admission  of  a  part  of  the  territory  into 
the  Union.^^ 

Both  the  Senate  and  House  took  action  as  a  result  of  the 
memorial.  The  House  referred  the  memorial  received  by  it  to 
a  committee  of  which  John  Randolph  of  Virginia  was  chairman. 
Reporting  for  the  committee,  Randolph  stated  that  the  griev- 
ances set  forth  were  those  inseparable  from  sudden  transitions 
of  government.     The  committee  recommended,  however,  ''every 


3*  American  State  Papers,  Miscellaneous,  I,  399 ;  Annals  of  Congress, 
8  Cong.,  2  Sess.   (1804-1805),  Appendix,  1606. 

35  Annals  of  Conaress,  8  Cong.,  2  Sess.  (1804-1805),  Appendix,  1608- 
1620. 


160        Constitutional  History  of  the  Louisiana  Purchase 

indulgence  not  incompatible  with  the  interests  of  the  union,  to 
be  extended  to  the  inhabitants  of  Louisiana."  Previous  forms 
of  government  employed  by  the  United  States  for  remote  terri- 
tories were  considered  not  to  be  worthy  of  imitation  in  the 
case  of  Louisiana.  The  object  of  the  committee  was  to  give 
Louisiana  a  government  of  its  own  choice,  administered  by 
officers  of  its  own  appointment.  Certain  restrictions  would  be 
made,  among  them  ''a  prohibition  of  the  importation  of  foreign 
slaves . . .,  restrictions  against  the  establishment  of  any  form  of 
government,  other  than  a  representative  Republic;  against  vio- 
lations of  the  liberty  of  conscience,  the  freedom  of  the  press,  and 
the  trial  by  jury;  against  the  taxation  of  the  lands  of  the  United 
States,"  to  which  was  added  the  usual  restriction  of  requiring 
the  approval  of  Congress  to  acts  passed.  A  resolution  was  then 
submitted  for  providing  by  law  for  the  extension  to  the  inhab- 
itants of  Louisiana  of  the  right  of  self-government.^^ 

In  the  Senate  the  memorial  was  referred  to  a  committee 
composed  of  Giles  of  Virginia,  Franklin  of  North  Carolina, 
Anderson  of  Tennessee,  Tracy  of  Connecticut,  and  Baldwin  of 
Georgia,  who  reported  a  bill  providing  for  the  government  of 
the  territory  of  Orleans.  This  bill  authorized  the  President  to 
establish  a  government  similar  to  that  of  the  Mississippi  Terri- 
tory. The  inhabitants  were  to  be  entitled  to  and  enjoy  all  the 
rights,  privileges,  and  advantages,  secured  by  the  Ordinance  of 
1787,  and  enjoyed  by  the  people  of  Mississippi. 

There  was  to  be  a  general  assembly  of  twenty-five  members 
elected  by  the  voters  of  the  territory.  Annual  meetings  were 
provided  for.  Laws  in  force  in  the  territory  at  the  commence- 
ment of  this  act,  and  not  inconsistent  with  it,  were  to  continue 
in  force  until  altered  or  repealed  by  the  legislature.  Whenever 
the  population  should  have  reached  a  number  to  be  determined 


^&  Annals  of  Congress,  8  Cong.,  2  Sess.  (1804-1805),  1014-1017;  Ameri- 
can State  Papers,  Miscellaneous,  I,  417-418. 


Problems  of  Territorial  Government  161 

[sixty  thousand],  arrangements  should  be  made  for  the  estab- 
lishment of  a  state  government  and  admission  into  the  Union 
upon  the  footing  of  the  original  states,  conformably  to  the  third 
article  of  the  treaty  of  cession.  The  constitution  to  be  established 
must  be  republican  and  not  inconsistent  with  the  Constitution 
of  the  United  States,  nor  with  the  Ordinance  of  1787  so  far  as 
it  should  be  made  applicable  to  the  territorial  government  to  be 
established.  Congress  was  to  be  at  liberty  at  any  time  prior 
to  the  admission  of  the  inhabitants  of  the  territory  to  the  rights 
of  separate  statehood,  to  alter  the  boundaries ;  but  no  alteration 
could  be  made  which  would  delay  admission  as  a  state.  So  much 
of  the  act  for  temporary  government  as  was  repugnant  with  this 
act  was  to  be  repealed  (time  left  blank). ^^ 

This  bill  was  rushed  through  in  the  closing  hours  of  the 
session.  It  was  passed  by  the  Senate  March  1,  1805,^^  by  the 
House  March  2,^^  and  was  approved  by  the  President  on  the 
same  day.*^ 

Echoes  of  the  compact  theory  were  still  to  be  heard,  for  at 
least  one  senator  gave  as  his  reason  for  voting  against  the  bill, 
the  provision  that  when  the  territory  had  sixty  thousand  inhab- 
itants it  was  to  be  admitted  into  the  Union,  upon  the  footing  of 
the  original  states.  This,  in  Plumer's  opinion,  was  unconsti- 
tutional. A  new  partner  could  not  be  admitted  into  the  Union, 
from  without  the  original  limits  of  the  United  States,  without 
the  consent,  first  obtained,  of  each  of  the  original  partners  to 
the  federal  compact.^^ 

Upon  their  return  home,  Derbigny,  Destrehan  and  Sauve 
reported.  May  2,  1805,  on  their  experience  in  Washington.    Thej^ 


S7  Annals  of  Conoress,  8  Cong.,  2  Sess.    (1804-1805),  45-46;   Laws  of 
U.  States,  III,  648-650. 

38  Annals  of  Congress,  8  Cong.,  2  Sess.  (1804-1805),  69. 

39  Ibid.,  1215. 

40  Ibid.,  Appendix,  1674-1676. 

41  Plumer,  Life  of  William  Plumer,  328. 


162       Constitutional  History  of  the  Louisiana  Purchase 

admitted  failure  to  get  all  they  had  asked  for,  and  objected  to 
*  the  arbitrary  setting  of  the  number  required  for  statehood  at 
sixty  thousand.  However,  the  right  to  initiate  laws  had  been 
gained.  The  House  of  Representatives  was  willing  to  grant 
unlimited  right  of  self-government  but  the  Senate  was  opposed; 
nevertheless,  the  attitude  of  the  House  was  encouraging.  The 
term  fixed  for  admission  into  the  Union  though  arbitrary  was 
not  irrevocable.*^ 

Claiborne  hoped  that  the  people  would  be  contented  with  the 
new  order  of  things.  He  was  convinced  that  an  early  introduc- 
tion of  the  entire  representative  system  into  Orleans  Territory 
would  be  a  hazardous  experiment.  He  expressed  serious  doubts 
whether  the  second  grade  of  territorial  government  would  be 
conducted  with  discretion.*^ 

Rufus  Easton  had  a  short  time  previously  to  this  written  to 
Gideon  Granger  that  a  representative  form  of  government  would 
be  advisable  for  the  Orleans  Territory,  as  it  would  attach  the 
people  to  the  Federal  Government.  He  suggested  that  one 
branch  of  the  legislature  be  composed  of  representatives  from 
districts,  elected  by  the  people.  The  rest  of  the  government 
might  remain  for  the  present  the  same  or  similar  to  that  of  terri- 
tories of  the  first  grade;  with  the  exception  that  the  governor's 
veto  would  be  operative  only  until  the  opinion  of  Congress 
through  the  representation  of  a  territorial  delegate  should  be 
known. 

Easton  took  the  opportunity  to  warn  against  prohibiting 
settlement  on  the  western  bank  of  the  Mississippi,  a  policy  which 
he  declared  had  originated  with  the  landed  interests.  If  carried 
into  effect,  ' '  it  would  be  injurious  to  the  United  States — ruinous 
to  the  western  country  and  infringe  the  rights  of  the  people." 
Should  trouble  with  the  Indians  occur,  the  navigation  of  the 

^2  Louisiana  Gazette,  June  11,  1805.     (Translated  from  the  Moniteur.) 
43  Claiborne  to  Madison,  May  4,  1805,  in  Claiborne  Papers,  ''Claiborne's 
Correspondence,  Orleans  Territory,"  III. 


Problems  of  Territorial  Government  163 

Mississippi  would  be  shut  off,  causing  great  loss  and  discomfort 
to  the  people  of  the  western  country.  He  was  willing  to  concede 
that  it  might  be  a  good  policy  to  draw  a  frontier  line  some 
distance  beyond  the  Mississippi  and  halt  settlers  there. 

Granger  considered  these  suggestions  of  sufficient  importance 
to  forward  them  to  Jefferson.** 

As  Claiborne  had  inferred,  there  was  little  outward  sign  of 
disappointment  at  the  failure  of  Congress  to  grant  to  the  people 
of  Orleans  Territory  everything  for  which  they  had  asked. 
After  an  excursion  to  Point  Coupe,  he  reported  that  the  citizens 
were  happy  and  apparently  well  disposed  to  the  American  Gov- 
ernment.*^ He  was  persuaded  that  the  great  body  of  the  citizens 
could  not  be  shaken  in  their  allegiance,  or  be  made  to  think  that 
they  were  not  greatly  benefited  by  their  annexation  to  the  United 
States.*^ 

On  December  28,  1805,  Jefferson  wrote  to  the  speaker  and 
the  house  of  representatives  of  the  territory,  felicitating  them 
on  their  many  blessings,  among  them  that  of  being  joined  to  the 
United  States.  He  praised  their  choice  of  representatives,  which 
augured  well  for  their  future  political  happiness.*^ 

Yet  Jefferson  was  not  altogether  satisfied  with  conditions  as 
they  existed  in  the  new  territory.  On  April  2,  1806,  he  expressed 
himself  to  Senator  Plumer  on  a  bill  which  provided  that  two 
million  acres  of  land  in  the  territory  of  Orleans  be  surveyed  and 
divided  into  townships  and  lots,  each  alternate  lot  of  one  hun- 
dred and  sixty  acres  to  be  given  to  every  free  able-bodied  male 
not  an  inhabitant  of  the  territory  or  of  the  Mississippi  Territory 
on  condition  that  he  would  live  there  and  cultivate  the  same 


44  Gideon  Granger  to  Jefferson,  April  1,  1805,  in  Jefferson  Papers,  ^'Let- 
ters received  at  Washington,  2nd  Series,"  XXXVI,  (74  and  75).  Granger 
was  Postmaster  General  at  this  time. 

45  Claiborne  to  Madison,  May  31,  1805,  in  Claiborne  Papers,  **  Clai- 
borne's Correspondence,  Orleans  Territory,"  III. 

46  Claiborne  to  Madison,  June  6,  ibid. 

*T  Jefferson  Papers,  ''Letters  from  Jefferson,  1st  Series,"  XI,  1805- 
1806,  (83). 


164       C onstitutio'tial  History  of  the  Louisiana  Purchase 

years  and  render years  of  military  service  in  the 

militia  of  the  United  States.  Jefferson  declared  the  bill  to  be 
the  most  important  then  pending  in  Congress.  Louisiana  was 
exposed  and  it  was  necessary  that  provision  be  made  for  its 
defense.  Nearly  half  of  its  present  inhabitants  were  such  that 
they  could  not  be  depended  on  in  case  of  an  invasion.  It  would 
be  impolitic  and  expensive  to  raise  a  standing  army;  and  it 
was  doubtful  if  the  militia  from  the  states  would  consent  to  go 
and  stay  there  any  great  length  of  time.  There  was  no  means 
of  compelling  them  to  do  it.  If  lands  were  given  as  bounties, 
able-bodied  men  would  go  there  and  settle  and  have  an  interest 
in  defending  the  territory. 

Plumer  answered  that  he  considered  it  as  establishing  a  new 
principle  in  our  Government,  a  sort  of  feudal  system,  based  on 
military  tenure.  He  required  more  time  to  satisfy  himself  how 
far  it  would  affect  the  Constitution  and  legal  system.  He  feared 
the  danger  of  sudden  innovations  in  government."^* 

The  bill  to  which  Jefferson  referred  was  introduced  March  6, 
by  Senator  Worthington  of  Ohio.  The  tract  of  land  was  to  be 
located  between  the  Achafalaya,  the  Red  River  and  a  meridian 
line  passing  by  the  fort  at  Natchitoches.^^  The  bill  was  passed 
to  the  third  reading  only  by  the  deciding  vote  of  the  president 
of  the  Senate.^*^  On  April  4,  two  days  after  Jefferson's  conver- 
sation with  Plumer,  further  consideration  was  postponed  until 
the  next  session.^^  This  seemingly  put  an  end  to  the  bill  for 
although  on  February  6,  1806,  Worthington  gave  notice  that  he 
would  on  the  next  day,  * '  bring  in  a  bill  to  encourage  a  settlement 
in  the  western  district  of  Orleans,"  presumably  his  former 
measure,  no  further  mention  of  it  was  made.^^ 

48 '' Plumer 's  Eegister,"  1,  April  3,  1806.  This  is  really  the  third 
volume  of  Plumer,  ''Memorandum  of  the  proceedings  in  Congress,"  but  as 
it  is  marked  as  above  on  the  cover,  it  is  so  cited  here. 

i9  Annals  of  Congress,  9  Cong.,  1  Sess.  (1805-1806),  164. 

^olhid.,  207. 

5ill)id.,  228. 

52lUd.,  9  Cong.,  2  Sess.,  62. 


Problems  of  Territorial  Government  165 

Jefferson,  however,  did  not  give  up  his  idea  immediately, 
as  is  shown  hy  a  letter  which  he  wrote  to  John  Dickinson  on 
January  13,  1807.  He  said  that  discontent  in  the  territory  of 
Orleans  was  due  to  the  prohibition  of  the  importation  of  foreign 
slaves ;  to  the  administration  of  justice  in  forms  foreign  to  the 
people,  and  all  the  more  abhorrent  because  of  corruption  of 
lawyers ;  and  to  the  question  of  land  titles/"^^  Because  of  trouble 
with  the  French  element  Jefferson  proposed  the  enlistment  of 
thirty  thousand  native-born  Americans,  to  be  transported  at 
the  public  expense,  and  settled  on  bounties  of  one  hundred  acres 
of  land  each,  west  of  the  Mississippi,  on  condition  of  two  years 
military  service  should  that  country  be  attacked  within  a  period 
of  seven  years.  Besides  providing  on  the  spot  for  the  defense 
of  the  country,  the  addition  to  the  population  would  entitle  the 
territory  to  become  a  state,  with  a  majority  of  Americans,  thus 
making  it  an  American  rather  than  a  French  state.  ''This," 
concluded  Jefferson,  "would  not  sweeten  the  pill  to  the  French 
but  in  niaking  that  acquisition  we  had  some  view  to  our  own 
good  as  well  as  theirs,  and  I  believe  the  greatest  good  of  both 
will  be  promoted  by  whatever  will  amalgamate  us  together."^* 

As  a  President  confronted  with  practical  problems  to  solve, 
Jefferson  could  deviate  far  from  the  theories  of  the  framer  of 
the  Declaration  of  Independence,  and  salve  his  conscience  with 
the  doctrine  that  "the  greatest  good  of  both  will  be  promoted 
by  whatever  will  amalgamate  us  together." 

This  was  not  the  only  case  in  which  Jefferson  thought  an 
explanation  of  his  action  necessary.  In  a  letter  to  General 
William  Smith,  May  4,  1806,  in  stating  his  belief  that  his 
appointment    of    General    Wilkinso'n    as    military    governor    of 


53  These  are  the  chief  causes  of  discontent  enumerated  in  a  letter  of 
Claiborne's  to  Madison,  May  16,  1806,  in  Claiborne  Tapers,  ''Claiborne's 
Correspondence,  Orleans  Territory,"  IV. 

^*  Jefferson,  Writings  (Memorial  ed.),  XI,  135-137.  For  the  policy  of 
the  United  States  Government  on  the  holding  of  the  western  boundary 
of  Louisiana  against  Spain,  see  Marshall,  A  History  of  the  Western 
Boundary  of  the  Louisiana  Purchase,  1819-1841. 


166       Constitutional  History  of  the  LouisiaTia  Purchase 

Upper  Louisiana,  was  as  good  as  could  have  been  made,  he 
nevertheless  admitted  a  ''qualm  of  principle"  in  the  union  of 
the  civil  and  military  authority.  He  had  refused  to  appoint 
Wilkinson  to  the  governorship  of  the  Mississippi  Territory  for 
that  very  reason.  In  the  appointment  to  Upper  Louisiana  he 
did  not  think  himself  departing  from  his  principle  because  he 
considered  it  ''not  as  a  civil  government,  but  merely  a  military 
station."  That  idea  had  been  sanctioned  by  the  legislative  body 
by  the  establishment  of  the  office  of  commandant,  in  which  the 
civil  and  military  powers  were  blended.  "It  seemed  therefore 
that  the  governor  should  be  in  suit  with  them."  At  the  very 
time  of  passing  the  stricture  on  the  union  of  authorities,  the 
House  of  Representatives  had  passed  a  bill  making  the  governor 
of  Michigan  commander  of  the  regular  troops  which  should  at 
any  time  be  within  his  government.^^  By  the  action  of  the 
Legislature,  rather  than  by  strict  adherence  to  theory,  did  Jeffer- 
son thus  defend  his  action. 

There  arose,  also,  certain  questions  incidental  to  the  transfer 
of  jurisdiction  over  the  territory  from  France  to  the  United 
States.  A  Spaniard  residing  in  the  territory  was  arraigned  on 
a  murder  charge.  His  counsel  demanded  a  jury  composed  in 
part  of  Spaniards.  While  conceding  that  the  prisoner  was  an 
inhabitant  of  Louisiana  at  the  time  of  cession  to  the  United 
States,  and  was  still  an  inhabitant  thereof,  it  was  nevertheless 
contended  that  since  he  had  not  taken  an  oath  of  allegiance  to 
the  United  States,  he  was  an  alien,  and  a  subject  of  the  King 
of  Spain.  Some  of  the  American  lawyers  settled  in  New  Orleans 
thought  an  oath  of  allegiance  to  the  United  States  necessary 
before  the  people  could  be  considered  American  citizens.  Clai- 
borne did  not  agree  with  them  and,  in  this  instance,  was  pleased 
with  the  decision  of  the  Superior  Court,  which  held  that  all  per- 
sons who  resided  in  the  territory  at  the  period  of  cession  and  had 
not  withdrawn  with  the  Spanish  or  French  authorities  could  not 

55  Jefferson,  Writings  (Memorial  ed.),  XI,  112. 


Problems  of  Territorial  Governmmvt  167 

be  considered  otherwise  than  as  citizens  of  the  United  States.^^ 
Another  of  these  questions  grew  out  of  the  excitement  inci- 
dent to  the  Burr  Conspiracy.  It  is  not  necessary  here  to  trace 
the  history  of  that  conspiracy,  which  has  been  treated  fully 
by  various  writers."  Apprehensive  of  danger,  Claiborne,  in  a 
message  to  the  territorial  legislature,  recommended  that  it  sus- 
pend the  writ  of  habeas  corpus.^*  The  answer  of  the  house 
of  representatives  of  the  territory  was  a  resolution  of  February 
17,  1807,  refusing  to  suspend  the  writ,  on  the  ground  that  after 
an  examination  of  the  Constitution  of  the  United  States  and 
the  ordinance  of  Con-gress  by  which  the  territory  was  governed, 
they  had  reached  the  conclusion  that  to  suspend  the  writ  would 
be  a  violation  of  the  Constitution.^^ 

Although  the  judges  and  the  district  attorney  agreed  with 
the  decision  of  the  legislature,  Claiborne  held  a  contrary  view. 
He  argued  that  although  the  Ordinance  of  1787  provided,  ' '  That 
the  people  shall  alwaj^s  be  entitled  to  the  privilege  of  the  writ 
of  Habeas  Corpus  and  the  trial  by  jury,"®^  and  that  therefore 
the  power  nowhere  existed  to  suspend  the  writ  in  the  Northwest 
Territory,  yet  this  was  changed  when  the  Constitution  became 
the  supreme  law  of  the  land.  In  the  clause  of  the  Constitution 
declaring  that  ''the  Habeas  Corpus  shall  not  be  suspended 
except  in  times  of  rebellion,  or  danger  of  invasion,  "^^  a  power 
to  suspend  was  recognized.  This  power  not  being  exclusively 
delegated  to  Congress,  or  prohibited  to  the  states,  was  reserved 


56  Claiborne  to  Madison,  June  25,  1806,  in  Claiborne  Papers,  ''Clai- 
borne 's  Correspondence,  Orleans  Territory, ' '  IV ;  Gayarr^,  History  of  Louis- 
iana, IV,  148-149. 

57  See  Walter  F.  McCaleb,  The  Aaron  Burr  Conspiracy ;  Henry  Adams, 
History  of  the  United  States,  III,  219-343,  441-471;  James  Parton,  Life 
and  Times  of  Aaron  Burr. 

58  Gayarre,  History  of  Louisiana,  IV,  181. 

5^  Claiborne  Papers,  ''Claiborne's  Correspondence,  Orleans  Territory," 
V,  resolution  signed  by  John  Watkins,  Speaker  of  the  House  of  Kepresenta- 
tives;  Gayarre,  History  of  Louisiana,  IV,  182. 

60  Art.  II. 

61  Art.  I,  sec.  9,  cl.  2. 


168       Constitutional  History  of  the  Louisiana  Purchase 

by  amendment  ten  of  the  Constitution  to  the  states.  Claiborne 
contended  that  if  a  state  could  suspend  the  writ  of  habeas  corpus, 
so  could  a  territorial  legislature,  because  "their  powers  extend 
to  all  the  rightfvd  subjects  of  legislation,  and  those  are  rightful 
which  the  supreme  law  of  the  land  in  (the  Constitution)  recog- 
nizes. '  '^2 

If  the  opinion  of  the  territorial  legislature  were  correct,  Clai- 
borne saw  the  necessity  of  amending  the  Ordinance  of  Govern- 
ment, vesting  the  right  of  suspension  of  the  writ  of  habeas  corpus 
in  allf  or  some  one  of  the  branches  of  the  territorial  legislature. 
The  experience  of  the  Burr  Conspiracy  had  shown  the  need  of 
this  in  time  of  rebellion.^^ 

The  Federal  authorities  were  also  experiencing  difficult}^  over 
the  writ  of  habeas  corpus.  Following  Jefferson's  message  of 
January  22,  1807,  giving  information  to  Congress  concerning 
the  Burr  conspiracy,*'*  the  Senate,  January  23,  took  up  the 
question  of  suspending  the  privilege.  By  unanimous  consent 
the  rules  were  suspended,  and  a  bill  for  the  suspension  of  the 
privilege  of  the  writ  of  habeas  corpus  was  rushed  through  its 
three  readings  and  passed,  all  in  a  single  day.^^  The  bill  was 
then  sent  to  the  House  in  the  form  of  a  confidential  message. 
The  House  was  accordingly  cleared,  but  when  the  bill  had  been 
read  and  its  nature  ascertained,  that  body  voted,  one  hundred 
and  twenty-three  to  three,  to  open  the  doors  during  the  discus- 
sion.^^ 


62  Gayarre,  History  of  Louisiana,  IV,  183-184. 

63  Claiborne  to  Madison,  February  20,  1807,  in  Claiborne  Papers,  "Clai- 
borne 's  Correspondence ;   Orleans  Territory, ' '  V. 

64  Eichardson,  Messages  and  Papers  of  the  Presidents,  I,  412-417,  Jef- 
ferson did  not  ask  for  the  action  which  the  Senate  proceeded  to  take.  In 
1788  when  discussing  with  Madison  the  provisions  of  the  Constitution, 
Jefferson  had  opposed  the  suspension  of  the  privilege  of  the  writ  of  habeas 
corpus  on  all  occasions,  even  in  cases  of  insurrections  and  rebellions.  Jef- 
ferson, Writings  (Ford,  ed.),  V,  46-47. 

e5  Annals  of  Congress,  9  Cong.,  2  Sess.  (1806-1807),  44. 
e^Ibid.,  402-403. 


Problems'  of  Territorial  Government  169 

The  Senate  bill  was  then  taken  up  and  received  very  little 
support.  The  principle  of  the  bill  was  vigorously  denounced. 
The  action  asked  for  was  considered  unnecessary.  It  was  argued 
that  the  public  safety  did  not  require  the  suspension  and  only 
when  that  emergency  arose  could  this  great  power  be  constitu- 
tionally exercised.  Furthermore,  a  dangerous  precedent  would 
be  established  if  the  bill  should  pass.  Such  a  precedent  could 
be  used  by  a  corrupt  and  vicious  administration  in  a  manner 
destructive  to  the  liberties  of  the  people.^^  The  bill  was  rejected 
by  a  vote  of  one  hundred  and  thirteen  to  nineteen.^^ 

It  is  worth  noting  that  during  the  debate  on  the  measure, 
Representative  Eppes  of  Virginia  made  the  statement,  which 
went  unchallenged,  that  the  Constitution  had  vested  the  power 
of  suspension  of  the  privilege  of  the  writ  of  habeas  corpus  in 
Congress.®^  The  same  opinion  was  expressed  by  Chief  Justice 
Marshall  in  Ex  parte  Bollman,''^  a  case  which  grew  out  of  this 
same  Burr  conspiracy.  This  seems  to  have  been  the  accepted 
view  of  the  matter^ ^  until  the  Civil  War  when  President  Lincoln 
assumed  the  power  himself.  With  the  opposition  which  this 
action  of  the  President  aroused  and  the  flood  of  literature  which 
it  precipitated  we  are  not  here  concerned.^^ 


67  Ihid.,  403-424. 

68  lUd.,  424-425. 

69  lUd.,  409-410. 

70  4  Craneh  75. 

71  As  for  instance  by  Story  in  his  Commentaries  on  the  Constitution  of 
the  United  States,  par.  1342. 

72  See  for  example,  Horace  Binney  's  pamphlets  on  The  Principles  of 
the  Writ  of  Habeas  Corpus;  Joel  Parker,  '* Habeas  Corpus  and  Martial 
Law,"  in  North  American  Beview,  XCIII,  471-518  (October,  1861)  ;  George 
K.  Curtis,  Constitutional  History  of  the  United  States,  II,  Appendix,  668  - 
686;  S.  Gr.  Fisher,  "The  Suspension  of  Habaes  Corpus  during  the  War  of  the 
Eebellion, ' '  in  Political  Science  Quarterly,  III,  454-488.  For  further  refer- 
ences consult  the  list  of  pamphlets  published  during  the  Civil  War  appended 
to  Fisher's  article. 


CHAPTEE  X 

DEMANDS  FOR  STATEHOOD  AND  THE  QUESTION 
OF  WEST  FLORIDA 

The  people  of  Orleans  Territory  had  shown  their  loyalty  to 
the  Federal  Government  during  the  period  of  the  Burr  intrigues ; 
and  with  a  rapidly  growing  population  and  prosperity,  looked 
towards  statehood.  On  May  19,  1809,  Claiborne  sent  to  Secre- 
tary of  State  Robert  Smith  a  copy  of  the  memorial  to  Congress 
which  had  been  adopted  by  the  legislative  council  and  the  house 
of  representatives  of  the  territory  at  their  last  session,  asking 
for  early  admission  into  the  Union  as  a  state,  Claiborne  ex- 
pressed his  belief  that  a  territorial  government  was  still  a  neces- 
sity, for  although  the  people  were  peaceable  and  amiable  they 
were  not  prepared  for  statehood.  He  furnished,  also,  some  inter- 
esting statistics  on  the  condition  of  the  territory.  The  census 
of  1806,  set  the  population  at  52,998  people,  of  whom  23,574 
were  slaves,  3,355  free  people  of  color,  leaving  26,069  whites. 
Of  the  latter  at  least  13,500  were  natives  of  Louisiana,  for  the 
most  part  descendants  of  the  French ;  about  3,500  natives  of  the 
United  States,  and  the  rest  Europeans,  including  native  French, 
Spaniards,  English,  Germans  and  Irish.  Since  1806,  there  had 
been  only  about  3,000  or  4,000  free  immigrants,  two-thirds  of 
whom  were  native  Americans.  It  was  expected,  however,  that 
many  of  the  French  people  who  had  been  banished  from  Cuba 
would  come  to  the  territory.^ 


1  The  European  War  had  caused  many  Frenchmen  to  leave  Cuba  and 
seek  refuge  in  Louisiana,  Claiborne  did  not  relish  this  influx  of  foreign 
blood  and  tried  to  stem  the  tide  of  immigration.  At  the  same  time  he  was 
kind  to  the  refugees  who  did  come.  The  fact  that  the  French  brought 
their  slaves  with  them  caused  him  some  anxiety  because  it  was  a  violation 
of  the  law.  He  thought  best,  however,  not  to  be  too  severe  on  an  unfor- 
tunate people  and  allowed  the  owners  to  keep  their  slaves  provided  a  bond, 


Demands  for  Statehood  171 

The  memorial  had  met  with  great  opposition  in  the  territorial 
house  of  representatives,  the  final  vote  in  its  favor  being  eleven 
to  seven,  and  Claiborne  doubted  that  a  majority  of  the  people 
favored  statehood.  The  rights  of  the  citizens  were  little  under- 
stood and  a  general  apathy  prevailed  at  territorial  elections.  In 
conclusion,  Claiborne  recommended  changes  in  the  government 
as  related  to  the  supreme  judiciary,  and  also  an  increase  in 
number  of  the  members  of  the  legislative  council.^  On  March  12 
of  the  next  year  Giles,  in  the  Senate,  presented  another  memorial 
of  the  legislature  of  the  territory  of  Orleans,  praying  for  the 
admission  of  the  territory  into  the  Union. ^  The  memorial  was 
referred  to  a  select  committee*  which  reported  a  bill  acceding  to 
the  request  of  the  memorialists.^  An  attempt  was  made  by  Hill- 
house  to  add  to  the  bill  the  words:  '^Provided,  That  the  several 
States  shall  assent  thereto,  or  an  amendment  to  the  Constitution 
of  the  United  States  shall  authorize  Congress  to  admit  said 
Territory  of  Orleans  into  the  Union,  on  the  footing  of  the  orig- 
inal States."  This  was  defeated,^  and  the  bill  was  passed  on 
April  27  J 

Closely  connected  with  the  question  of  the  admission  of  the 
territory  of  Orleans  into  the  Union  as  a  state  was  that  of  the 
status  of  West  Florida.  In  1810  an  uprising  took  place  in 
which  the  people  of  West  Florida  threw  off  the  control  of  Spain 


sufficiently  secured,  was  given  that  the  negroes  would  be  produced  on  due 
notice.  If  the  owner  could  not  give  the  necessary  security  the  negroes  were 
hired  out  to  citizens  who  could,  and  the  money  so  obtained  was  turned  over 
to  the  ovniers.     Gayarre,  History  of  Louisiana,  IV,  214-220. 

2  Claiborne  Papers,  "Claiborne's  Correspondence,  Orleans  Territory," 
V;  Gayarre,  History  of  Louisiana,  IV,  211-214. 

3  Annals  of  Congress,  11  Cong.,  Part  1  (1809-1810),  596.  The  memorial 
is  given  in  full  in  the  American  State  Papers,  Miscellaneous,  II,  51-52,  and 
in  Annals  of  Congress,  11  Cong.,  Part  2  (1810),  Appendix,  2269-2273. 

i  Annals  of  Congress,  11  Cong.,  Part  I  (1809-1810),  596. 

5  Ibid.,  646. 

6  Ibid.,  670. 

7  Ibid.,  674. 


172       Constitutional  History  of  the  Louisiana  Purchase 

and  declared  themselves  free  and  independent.^  The  declaration 
^  of  independence  was  adopted  September  26,  1810,  and  on  Octo- 
ber 10,  John  Rhea,  president  of  the  convention,  wrote  to  Robert 
Smith,  secretary  of  state  of  the  United  States,  asking  for  the 
admission  of  West  Florida  as  a  state  into  the  Union.  Should 
it  be  thought  best  to  annex  West  Florida  to  one  of  the  neigh- 
boring territories,  or  a  part  of  one  of  them,  a  preference  for 
annexation  to  the  island  of  Orleans  was  stipulated.^ 

The  "legality"  of  the  course  pursued  with  regard  to  West 
Florida  had  been  carefully  considered  by  Madison  and  had 
troubled  him  somewhat.  The  crisis  in  West  Florida,  he  confided 
to  Jefferson,  October  19,  1810,  presented  ''serious  questions,  as 
to  the  Authority  of  the  Executive,  and  the  adequecy  of  the  exist- 
ing laws  of  the  U.  S.  for  territorial  administration. ' '  He  feared, 
also,  that  the  short  time  intervening  before  the  assembling  of 
Congress  "might  subject  any  intermediate  interposition  of  the 
Ex.  to  the  charge  of  being  premature  &  disrespectful,  if  not  of 
being  illegal."  On  the  other  hand,  considering  the  country  to 
the  River  Perdido  as  belonging  to  the  United  States,  it  ' '  may  be 
fairly  taken  possession  of,  if  it  can  be  done  without  violence, 
above  all  if  there  be  danger  of  its  passing  into  the  hands  of  a 
third  &  dangerous  party, '  '^^  a  contingency  which  Madison  at  that 
moment  greatly  feared.  A  few  days  later,  October  30,  Madison, 
writing  to  William  Pinkney,  said  that  his  action  was  "under- 
stood to  be  within  the  authority  of  the  Executive. '  '^^ 


8  For  the  text  of  the  declaration  see  Amials  of  Congress,  11  Cong.,  3 
Sess.  (1810-1811),  Appendix,  1254-1255;  also  Gayarre,  History  of  Louis- 
iana, IV,  231-233;  Fuller,  Purchase  of  FloHda,  Chapters  IV-VI,  for  an 
extended  account  of  the  boundary  dispute;  Isaac  J.  Cox,  ''The  American 
Intervention  in  West  Florida,"  in  American  Historical  Review,  XVII, 
290-311. 

9  Ajinals  of  Congress,  11  Cong.,  3  Sess.  (1810-1811),  Appendix,  1252- 
1253;  Gayarre,  History  of  Louisiana,  IV,  233-236. 

10  Madison,  Writings  (Hunt,  ed.),  VIII,  110. 

11  Ihid.,  VIII,  121. 


Demands  for  Statehood  173 

What  followed  is  best  summed  up  in  President  Madison 's 
message  to  Congress,  December  5,  1810 : 

Among  the  events  growing  out  of  the  state  of  the  Spanish  Monarchy, 
our  attention  was  imperiously  attracted  to  the  change  developing  itself  in 
that  portion  of  West  Florida  which,  though  of  right  appertaining  to  the 
United  States,  had  remained  in  the  possession  of  Spain,  awaiting  the 
result  of  negotiations  for  its  actual  delivery  to  them.12  The  Spanish 
authority  was  subverted,  and  a  situation  produced  exposing  the  country 
to  ulterior  events  which  might  essentially  affect  the  rights  and  welfare  of 
the  Union.  In  such  a  conjuncture  I  did  not  delay  the  interposition  required 
for  the  occupancy  of  the  territory  west  of  the  river  Perdido,  to  which  the 
title  of  the  United  States  extends,  £lnd  to  which  the  laws  provided  for  the 
Territory  of  Orleans  are  applicable.  With  this  view,  the  proclamation,  of 
which  a  copy  is  laid  before  you  was  confided  to  the  Governor  of  that 
Territory  to  be  carried  into  effect.  The  legality  and  necessity  of  the  course 
pursued  assure  me  of  the  favorable  light  in  which  it  will  present  itself  to 
the  Legislature,  and  of  the  promptitude  with  which  they  will  supply  what- 
ever provisions  may  be  due  to  the  essential  rights  and  equitable  interests 
of  the  people,  thus  brought  into  the  bosom  of  the  American  family.i3 

An  inkling  of  the  attitude  of  the  United  States  Government 
towards  the  West  Florida  revolutionists  was  given  in  the  state- 
ment of  Secretary  of  State  Smith,  ''that  the  President  could  not 
recognize  in  the  Convention  of  West  Florida  any  independent 
authority  whatever  to  propose,  or  to  form  a  compact  with  the 
United  States."^* 

Claiborne,  as  ordered,  marched  with  the  militia  to  St.  Fran- 
cisville  in  West  Florida  and  on  December  7,  1810,  hoisted  the 
flag  of  the  United  States  and  took  possession  of  the  country. 


12  For  a  clear-cut  statement  of  the  basis  for  the  claims  of  the  United 
States  in  the  dispute  over  the  eastern  and  western  boundaries  of  Louisiana, 
see  Gallatin,  Writings  (Adams,  ed.),  I,  241-243  (Letter  to  Jefferson,  Sep- 
tember 12,  1805).  The  weakness  of  the  claims  of  the  United  States  is 
there  shown, 

13  Richardson,  Messages  and  Papers  of  the  Presidents,  I,  484 ;  Annals 
of  Congress,  11  Cong.,  3  Sess.  (1810-1811),  12-13.  For  the  text  of  the 
proclamation  referred  to  see  iMd.,  Appendix,  1257-1258.  For  instructions 
to  Claiborne,  ibid.,  1256-1257. 

14  Smith  to  Governor  Holmes  of  Mississippi  Territory,  November  15, 
1810,  ibid.,  1259;  Gayarr6,  History  of  Louisiana,  IV,  240. 


174       Constitutional  History  of  the  Louisiana  Purchase 

The  so-called  State  of  West  Florida  was  annexed  to  the  territory 
of  Orleans,  and  organized  into  parishes.^^ 

On  December  10,  1810,  the  Senate  took  up  the  President's 
message  of  December  5,  and  Senators  Giles  of  Virginia,  Pope  of 
Kentucky,  Crawford  of  Georgia,  Anderson  of  Tennessee,  and 
Bradley  of  Vermont  were  appointed  a  committee  to  examine  and 
report  on  the  part  of  the  President's  message  which  referred  to 
West  Florida.^^  Giles  for  the  committee  reported,  December  18, 
on  a  bill  declaring  the  laws  in  force  in  the  territory  of  Orleans 
to  extend  and  to  have  full  force  and  effect  to  the  River  Perdido, 
pursuant  to  the  treaty  of  April  30,  1803.^^  The  question  came 
up  on  the  bill's  passage  to  a  third  reading  December  27,  and 
caused  another  debate  which  brought  out  further  interpretation 
of  the  constitutional  functions  of  the  various  branches  of  the 
Federal  Government. 

The  issues  under  the  bill  were  stated  by  Senator  Horsey  of 
Delaware  to  be,  first,  in  effect,  the  incorporation  with  the  terri- 
tory of  Orleans  of  the  province  of  West  Florida  east  of  the 
Mississippi,  as  far  as  the  Perdido;  and,  second,  the  extension  to 
that  part  of  the  province  thus  incorporated  of  the  laws  in  force 
in  the  territory  of  Orleans.  Did  the  United  States  have  a  good 
title  to  the  province,  and  was  it  expedient  for  the  Government  to 
take  possession  by  force,  were  questions  which  Horsey  proposed 
for  discussion.  An  examination  of  the  authority  of  the  President 
to  issue  the  proclamation  and  orders  of  August  27,  1810,  direct- 
ing the  forcible  occupation  of  West  Florida  introduced  certain 
constitutional  problems.  Horsey  contended  that  if  the  procla- 
mation had  been  unauthorized.  Congress  was  not  committed  by 
it,  nor  bound  to  sanction  it.  The  President's  authority  must 
have  been  derived  either  from  the  Constitution,  or  from  some  act 


15  Gayarr^,  History  of  Louisiana,  IV,  243. 

1^  Annals  of  Congress,  11  Cong.,  3  Sess.   (1810-1811),  17. 

^T  Ibid.,  25-26. 


DemMnds  for  Statehood  175 

or  acts  of  Congress.  The  Constitution  gave  to  Congress  the 
exclusive  power  of  declaring  and  making  war;  to  the  President 
the  power  of  executing  the  laws  of  the  Union.  The  powers  of 
the  former  are  legislative,  of  the  latter  executive.  The  President 
in  issuing  his  proclamation  transcended  the  limits  of  his  powers, 
the  proclamation  being  a  matter  of  legislation  and  war — war 
because  it  directed  the  occupation  of  the  territory  by  a  military 
force.  It  was  true  that  the  troops  were  ordered  not  to  molest 
the  Spaniards,  but  if  they  should  be  attacked  by  Spaniards  a 
conflict  was  inevitable.^^  The  same  would  be  true  if  the  revo- 
lutionists should  attack  the  troops. 

The  proclamation  was  also  an  act  of  legislation,  continued 
Horsey,  because  it  annexed  the  territory  in  question  to  the 
territory  of  Orleans,  created  a  governor,  enacted  laws  and  appro- 
priated money.  For  all  this  there  had  been  no  authority  under 
the  Constitution  or  by  act  of  Congress.  The  act,  therefore,  was 
an  unwarrantable  assumption  of  power  and  a  violation  of  the 
Constitution. 

Horsey  argued,  also,  that  the  title  of  the  United  States  to 
West  Florida  was  not  a  good  one,  and  even  if  it  were,  to  assert 
it  by  force  was  opposed  to  the  equitable  and  pacific  policy  of 
the  United  States.^^ 

Henry  Clay  rose  to  answer  Horsey.  After  asserting  the 
clear  right  of  the  United  States  to  West  Florida,  he  took  up  the 
question  of  the  constitutional  powers  of  the  Executive.  By  one 
section  of  the  Act  of  October,  1803,  the  President  had  been 
authorized  to  occupy  the  territories  ceded  by  France  to  the 
United  States;  by  another,  he  had  been  empowered  to  establish 
a  provisional  government  there.  The  first  was  unlimited  in 
duration;  the  second  was  restricted  to  the  expiration  of  the  then 


18  Just  such  a  conflict  actually  occurred  at  a  later  date  between  Amer- 
ican and  Mexican  troops  and  precipitated  the  Mexican  War. 

^9  Annals  of  Congress,  11  Cong.,  3  Sess.   (1810-1811),  37-55. 


176       Constitutional  History  of  the  Louisiana  Purchase 

session  of  Congress.  The  Act  of  March,  1804  [the  Breckinridge 
Bill],  which  declared  that  the  previous  act  of  October  should 
continue  in  force  until  October  1,  1804,  was  applicable,  said 
Clay,  to  the  second  and  not  to  the  first  section,  and  was  intended 
to  continue  the  provisional  government  which  had  been  estab- 
lished by  the  President.  By  the  Act  of  February  24,  1804,  for 
laying  duties  on  goods  imported  into  the  ceded  territories,  the 
President  had  been  empowered  whenever  he  should  deem  it 
expedient,  to  erect  the  bay  and  river  Mobile,  etc.,  into  a  separate 
district,  and  to  establish  therein  a  port  of  entry  and  delivery. 
By  the  same  act  Orleans  Territory  had  been  laid  off  and  its 
boundaries  so  defined  as  to  include  West  Florida.  By  other  acts 
the  President  had  been  authorized  to  remove  by  force,  under 
certain  circumstances,  persons  settling  or  taking  possession  of 
lands  ceded  to  the  United  States.  These  laws  had  vested  in  the 
Executive  an  indisputable  power  to  take  possession  of  the 
country  whenever,  in  his  opinion,  it  might  be  proper.  There- 
fore, held  Clay,  the  President  had  not  violated  the  Constitution 
and  usurped  the  war-making  power;  on  the  contrary,  he  would 
have  violated  the  Constitution  had  he  neglected  to  see  that  the 
laws  of  the  land  were  faithfully  executed.  Nor  was  it  any  more 
true  that  he  had  assumed  powers  belonging  to  Congress  when 
he  undertook  to  annex  West  Florida  to  the  territory  of  Orleans, 
inasmuch  as  Congress  had  already  made  this  annexation  the 
limits  of  that  territorj^  The  President  had  not  made  law  but 
had  merely  declared  to  the  people  of  West  Florida  what  the 
law  was.^^ 


^0  Annals  of  Congress,  11  Cong.,  3  Sess.  (1810-1811),  55-62.  It  is 
interesting  to  note  in  this  connection  Clay's  idea  of  the  attitude  the 
Government  should  take  toward  a  colony  of  another  Power  in  disorder  on 
the  American  border:  *'I  have  no  hesitation  in  saying,  that  if  a  parent 
country  will  not  or  cannot  maintain  its  authority  in  a  colony  adjacent  to 
us,  and  there  exists  in  it  a  state  of  misrule  and  disorder,  menacing  our 
peace,  and  if  moreover  such  colony,  by  passing  into  the  hands  of  any  other 
power,  would  become  dangerous  to  the  integrity  of  the  Union,  and  mani- 
festly tend  to  the  subversion  of  our  laws;  we  have  a  right,  upon  eternal 
principles  of  self-preservation,  to  lay  hold  of  it. ' '     Ihid.,  63. 


Demands  for  Statehood  177 

An  interruption  to  the  Senate  debate  on  this  particular 
question  came  in  the  form  of  a  message  from  the  House  of  Repre- 
sentatives on  January  16,  1811,  informing  the  Senate  of  the 
passage  by  the  House  of  a  bill  entitled,  ''An  act  to  enable  the 
people  of  the  Territorj^  of  Orleans  to  form  a  Constitution  and 
State  Government,  and  for  the  admission  of  such  State  into  the 
Union  on  an  equal  footing  with  the  original  States,  and  for  other 
purposes";  in  which  bill  they  desired  the  concurrence  of  the 
Senate.21 

On  January  25,  the  House  bill,  with  amendments,  was 
reported  by  Charles  Tait  of  Georgia,  from  the  Senate  committee 
to  whom  this  bill  had  been  referred.  Another  discussion  of  the 
West  Florida  question  resulted.  In  arranging  for  the  bound- 
aries of  the  proposed  state,  the  following  stipulation  was  made; 
"Provided  nevertheless,  that  the  Government  of  the  United 
States  hereby  retains  the  power  of  altering,  in  any  manner  it 
may  hereafter  deem  proper,  the  limits  of  all  that  portion  of  the 
said  prescribed  territory,  which  lies  east  of  the  river  Mississippi 
and  the  island  of  New  Orleans.  "^^ 

This  proviso  was  struck  out  on  January  29,  after  an  attempt 
to  amend  it  had  failed.  The  defeated  amendment  proposed  the 
retention  of  power  by  the  United  States  to  attach  to  the  proposed 
State  any  part  of  the  territory  lying  east  of  the  Mississippi 
River,  south  of  the  Mississippi  Territory,  and  west  of  the  river 
Mobile.23 

The  old  partnership-compact  theory  once  more  raised  its 
head  when  Dana  of  Connecticut  proposed  an  amendment  which 
provided : 

That  this  act  shall  not  be  understood  to  admit  such  State  into  the  Union 
as  aforesaid,  unless  each  of  the  original  States  shall  consent  to  the  same, 


21  Ibid.,  97. 
22lUd.,  103. 
23  Ibid.,  107. 


178       Constitutional  History  of  the  Louisiana  Purchase 

or  there  shall  be  a  constitutional  amendment  empowering  the  Congress  to 
admit  into  the  Union  new  States  formed  beyond  the  boundaries  of  the 
United  States,  as  known  and  understood  at  the  time  of  establishing  the 
Constitution  for  the  United  States.24 

When  this  amendment  was  taken  up,  January  30,  on  motion 
of  Clay,  it  was  divided.  The  first  division,  providing  for  the 
consent  of  each  state  to  the  passage  of  the  act  admitting  the  new 
state,  was  determined  in  the  negative,  nays  eighteen,  yeas  ten, 
those  voting  in  its  favor  being  Bradley  of  Vermont,  Champlin 
of  Rhode  Island,  Dana  and  Goodrich  of  Connecticut,  German 
of  New  York,  Gilman  of  New  Hampshire,  Horsey  of  Delaware, 
Lloyd  and  Pickering  of  Massachusetts,  and  Reed  of  Maryland. 
The  second  division  was  then  voted  down,  seventeen  to  eight.^^ 

After  several  other  attempts  at  amendment  and  postpone- 
ment the  Enabling  Act  passed  the  Senate,  February  7,  by  a 
vote  of  twenty-two  to  ten.^*^  The  next  day  the  Senate  turned  its 
attention  to  the  bill  declaring  the  laws  in  force  in  the  territory 
of  Orleans  to  extend  to  the  River  Perdido,  and  recommitted  it 
to  the  original  committee  to  which  this  part  of  the  President's 
message  had  been  first  referred.^^ 

The  petition  of  the  legislature  of  Orleans  Territory  for 
admission  into  the  Union  as  a  state,  with  the  same  privileges  and 
immunities  enjoyed  hy  the  other  states,  was  presented  to  the 
House  on  December  17,  1810,  by  Julian  Poydras,  delegate  from 
Orleans  Territory.^^  Being  referred  in  the  usual  way  to  a 
committee,  it  was  reported  December  27,  and  taken  up  in  the 
Committee  of  the  Whole,  January  2,  1811.  Poydras  said  that 
the  territory  contained  at  least  sixty  thousand  inhabitants  and 


^^  Annals  of  Congress,  11  Cong.,  3  Sess.  (1810-1811),  108. 

25  lUd.,  110. 

26  7bi^.,  127. 

27  Ihid.,  129. 

28  Ihid.,  413-414. 


Demands  for  Statehood  179 

had  a  right  to  become  a  state.  It  was  left  to  Congress,  however, 
to  act  as  it  saw  fit.  Troup  of  Georgia  said  the  House  was  not 
prepared  to  act  on  the  subject.  He  also  alluded  to  the  difficulty 
arising  from  including  within  a  state  the  territory  between  the 
Mississippi  and  the  Perdido,  which  was  still  in  dispute  and  sub- 
ject to  negotiation.  Willis  Alston  of  North  Carolina  presented 
the  view  occasionally  heard,  although  it  never  had  a  large  fol- 
lowing, ''that  there  was  no  question  of  the  propriety  of  admit- 
ting the  Territory  as  a  State,  whilst  it  was  in  the  power  of 
Congress  to  make  conditions  with  them.  After  the  population 
was  ascertained  to  amount  to  60,000,  they  would  become  a  State 
without  asking  the  leave  of  Congress. ' '  Bibb  of  Georgia  favored 
the  bill  but  thought  it  wise  to  postpone  decision  because  of  the 
pending  negotiations  over  the  eastern  boundary  of  the  territory. 
''If  it  became  a  State,"  he  inquired,  "would  not  all  right  of 
negotiation  of  the  subject  be  taken  from  the  President  ? ' ' 

Barry  of  Kentucky  claimed  the  need  for  state  government  to 
be  urgent,  and  answered  the  objection  respecting  the  boundary 
question  by  saying  that  a  modification  of  the  bill  could  be  made, 
reserving  to  Congress  the  power  of  changing  the  boundary  of 
the  territory.  He  urged  action  on  the  bill  while  Congress  yet 
had  the  power  to  impose  conditions  on  the  territory.  He  agreed 
with  Alston  in  declaring  that  if  Congress  should  wait  until  the 
population  reached  sixty  thousand,  the  demands  of  the  people 
could  not  be  refused.  Passing  this  bill,  however,  would  admit 
of  imposing  conditions  on  them. 

Barry  appears  to  have  lost  sight  of  the  fact  that  an  act  of 
one  Congress  was  not  necessarily  binding.  According  to  his 
interpretation.  Congress,  having  set  at  sixty  thousand  the  num- 
ber of  inhabitants  necessary  for  the  admission  of  Orleans 
Territory  into  the  Union  as  a  state,  was  bound  as  though  by 
compact  to  allow  the  admission.     While  this  might  be  the  fair 


180       Constitutional  History  of  the  Louisiana  Purchase 

thing  to  do,  there  was  nothing  to  prevent  Congress  from  impos- 
ing other  conditions,  even  to  the  extent  of  delaying  the  admission 
of  the  proposed  state  by  increasing  the  number  of  inhabitants 
required  for  that  act. 

Another  possible  dilemma  was  pointed  out  by  Sheffey  of 
Virginia,  who  also  took  up  the  question  of  the  extension  of  the 
limits  of  the  state  to  the  Perdido.  He  called  to  mind  the  fact 
that  when  the  Executive  had  directed  the  occupation  of  West 
Florida  a  pledge  had  been  given  that  it  should  be  subject  to 
future  negotiation.  Would  anyone  say  that  the  Executive  could 
convey  away  any  part  of  a  state?  What  would  he  be  bound  to 
do  if  it  should  be  proved  that  the  territory  was  not  ceded? 
Would  the  doctrine  be  established  that  the  treaty-making  power 
has  a  right  to  cede  a  state  or  any  part  of  a  state?  Sheffey 
thought  it  wise  to  move  slowly  in  this  affair.  Bibb  said  that 
when  the  bill  came  up  again,  he  would  move  to  strike  out  the 
proviso  relating  to  the  inclusion  of  the  territory  east  to  the 
Perdido.  To  make  it  a  state  would  forever  preclude  negotiation 
on  the  subject.  A  resolution,  moved  by  him,  providing  for  the 
appointment  of  a  committee  to  inquire  into  the  expediency  of 
annexing  to  the  Mississippi  Territory  or  creating  into  a  separate 
territorial  government,  the  territory  under  dispute,  was  being 
discussed  when  a  confidential  message  was  received  from  the 
President  and  further  debate  was  postponed.^^ 

The  bill  for  admitting  the  territory  of  Orleans  into  the  Union 
as  a  state  was  taken  up  in  Committee  of  the  Whole  the  next  day, 
January  4.  Long  and  earnest  interpretations  of  constitutional 
rights  were  made.  Wheaton  of  Massachusetts  reiterated  the 
claim  that  the  Constitution,  as  shown  by  its  ''enacting  clause," 
w£LS  ordained  and  established  for  the  then  United  States  of 
America,  implying  the  exclusion  of  all  others.  Failure  to  set 
a  boundary  to  extension  would  ultimately  result  in  the  relative 


Annals  of  Congress,  11  Cong.,  3  Sess.  (1810-1811),  482-486. 


Demanrls  for  Statehood  181 

unimportance  of  the  original  parties  to  the  compact.  He  intro- 
duced another  novel  interpretation  by  remarking  that  the  admis- 
sion of  the  people  of  the  territory  of  Orleans  into  the  Union  as  a 
state  would  carry  with  it  the  right  to  send  representatives  and 
senators  to  Congress ;  yet  the  Constitution  had  set  as  a  quali- 
fication for  senators,  citizenship  in  the  United  States  for  at 
least  nine  years,  a  period  longer  than  any  of  the  people  of  the 
territory  had  belonged  to  the  United  States,  unless  they  hap- 
pened to  be  emigrants  and  had  not  lost  their  citizenship. 

Miller  of  Tennessee  sided  with  those  who  opposed  the  bill 
because  it  included  extension  of  the  limits  of  the  territory  to  the 
Perdido.  There  was  no  power,  he  said,  to  negotiate  concerning 
the  territory  of  any  state,  and  this  problem  would  be  presented 
if  the  bill  passed  as  drawn  up.  Miller 's  colleague,  Rhea,  favored 
the  bill,  and  protested  against  the  doctrine  that  no  territory 
could  be  admitted  into  the  Union  as  a  state  which  did  not  belong 
to  the  original  states.  The  United  States,  a  sovereign,  had 
power  to  purchase  adjacent  territory  and  to  admit  it  into  the 
Union.  In  this  theory,  Gholson  of  Virginia  and  Macon  of  North 
Carolina  acquiesced.^" 

When  discussion  of  the  bill  was  resumed  on  January  9, 
Sheffey  moved  to  insert  in  place  of  the  part  of  the  bill  which 
prescribed  the  boundaries  of  the  future  state  the  words:  ''All 
that  territory  now  contained  within  the  limits  of  the  Territory 
of  Orleans,  except  that  part  lying  east  of  the  river  Iberville  and 
a  line  drawn  along  the  middle  of  the  lakes  Maurepas  and  Pont- 
chartrain  to  the  ocean."  This  amendment  was  opposed  by 
Wright  of  Maryland  and  Rhea  on  the  ground  that  the  Treaty 
of  1803  with  France  guaranteed  to  the  undivided  territory  of 
Orleans  a  right  to  become  a  state  on  the  same  conditions  with 
other  states.  Bibb  and  Ely  of  Massachusetts  supported  the 
amendment,  believing  it  expedient  to  leave  that  part  of  the 

solMd.,  493-505. 


182       Constitutional  History  of  the  Louisiana  Purchase 

territory  in  such  a  position  as  would  enable  the  United  States 
to  negotiate  respecting  it.  Sheffey's  motion  was  agreed  to, 
sixty-three  voting  in  favor  of  it.^^ 

The  bill  was  read  the  third  time  on  Saturday,  January  10, 
but  discussion  being  interrupted  by  the  receipt  of  a  confidential 
message  from  the  Senate,  it  was  postponed  until  the  following 
Monday. ^^  The  boundarj^  question  arose  once  more  to  plague 
the  House,  but  this  time  from  a  different  angle,  when  Timothy 
Pitkin  of  Connecticut  rehearsed  at  length  the  problems  of  the 
western  boundary.  The  boundary  could  not  be  changed  after 
the  admission  of  the  territory  as  a  state;  therefore,  declared 
Pitkin,  conditions  ought  to  be  attached  giving  the  United  States 
control  of  the  boundary  question.^^  Johnson  of  Kentucky  did 
not  recognize  any  insurmountable  difficulty  in  the  matter.  First 
asserting  that  ''the  principles  of  every  State  constitution  in  the 
Union,  the  political  creed  so  often  professed  on  this  floor,  the 
sentiments  of  freedom  as  often  expressed,  and  the  articles  of  the 
Federal  Constitution  which  circumscribed  our  powers,  all  unite 
to  enforce  the  claims  of  this  Territory  to  State  sovereignty, ' '  he 
added  that  by  the  treaty  the  United  States  was  bound  to  admit 
the  territory  as  soon  as  possible.  The  boundary  question  was  not 
a  new  one.  A  similar  dispute  over  the  northeastern  boundary 
had  been  settled  peaceably  with  Great  Britain,  according  to 
provisions  of  the  Jay  Treaty  of  1794.  Similarly  the  boundary 
between  the  state  of  Georgia  and  the  Spanish  provinces  of  East 
and  West  Florida  had  been  established  hy  the  Treaty  of  1795 
between  the  United  States  and  Spain.  There  was  no  reason, 
said  Johnson,  why  the  boundaries  of  the  proposed  state  might 
not  be  settled  in  the  same  way.^* 


&i  Annals  of  Congress,  11  Cong.,  3  Sess.   (1810-1811),  513. 

S2lbid.,  516. 

S3  Ibid.,  518-519. 

3^  Ibid.,  520-524. 


Demands  for  Statehood  183 

Josiah  Quincy  then  took  the  floor,  and  assuming  an  extremely 
radical  point  of  view  in  opposition  to  the  passage  of  the  bill, 
delivered  what  is  perhaps  the  most  widely  known  speech  on  the 
entire  subject,  in  the  course  of  which  he  asserted : 

...  I  am  compelled  to  declare  it  as  my  deliberate  opinion,  that,  if  this 
bill  passes,  the  bonds  of  this  Union  are  virtually  dissolved;  that  the  States 
which  compose  it  are  free  from  their  moral  obligations,  and  that,  as  it  will 
be  the  right  of  all,  so  it  will  be  the  duty  of  some,  to  prepare  definitely  for 
a  separation — amicably  if  they  can,  violently  if  they  must. 

Quincy  was  here  called  to  order  by  Poindexter,  territorial 
delegate  from  Mississippi.  The  Speaker  upheld  Poindexter  but 
the  House,  on  appeal,  voted  against  the  Speaker's  decision  and 
Quincy 's  observations  were  declared  to  be  in  order.  Quincy  then 
resumed  his  speech.  He  held  it  to  be  a  usurpation  of  power, 
without  sanction  of  the  Constitution,  for  the  three  branches  of 
the  National  Government,  without  recurrence  to  conventions  of 
the  people,  in  the  states,  or  to  the  legislatures  of  the  states,  to 
authorize  the  admission  of  new  partners  to  a  share  of  the  politi- 
cal power,  in  countries  outside  the  original  limits  of  the  United 
States.  The  provision  that  ''new  States -may  be  admitted,  by 
the  Congress,  into  the  Union,"  referred  only  to  new  political 
sovereignties  to  be  formed  within  the  original  limits  of  the 
United  States.  No  mention  of  new  territory  was  to  be  found 
in  the  debates  in  the  period  of  the  adoption  of  the  Federal  Con- 
stitution. This  fact,  according  to  Quincy,  would  go  to  show  that 
the  people  had  no  idea  of  territorial  expansion  on  the  part  of 
their  successors.  One  of  the  arguments  used  against  the  success 
of  the  new  Government  of  the  United  States  had  been  that  the 
territory  was  too  extensive  for  a  republican  form  of  government. 
Yet  ambitious  hopes  were  already  looking  far  beyond  any  limits. 
Quincy  pessimistically  prophesied  what  has  since  come  to  pass 
when  he  said :  ' '  We  are  now  about  to  cross  the  Mississippi.  The 
Missouri  and  Red  rivers  are  but  roads  on  which  our  imagination 


184       Constitutional  History  of  the  Louisia7ia  Purchase 

travels  to  new  lands  and  new  States  to  be  raised  and  admitted 
^  (under  the  power,  now  first  usurped)  into  this  Union,  among 
undiscovered  lands,  in  the  west."  In  like  vein  a  little  later  in 
the  same  speech  he  added:  ''Ther-e  is  no  limit  to  men's  imag- 
inations, on  this  subject,  short  of  California  and  Columbia 
river. ' ' 

The  real  motive  back  of  Quincy's  fierce  denunciation  of  the 
principles  of  the  bill  was  stated  clearly  and  emphatically— that 
of  the  political  balance  of  power :  ' '  Whether  the  proprietors  of 
the  good  old  United  States  shall  manage  their  own  affairs  in 
their  own  way;  or  whether  they,  and  their  Constitution,  and 
their  political  rights,  shall  be  trampled  under  foot  by  foreigners 
introduced  through  a  breach  of  the  Constitution. ' '  The  relation 
between  state  and  federal  government  was  laid  down  by  Quincy 
in  a  manner  to  satisfy  the  most  radical  advocate  of  states '  rights  : 

I  hold  my  life,  liberty,  and  property,  and  the  people  of  the  State,  from 
which  I  have  the  honor  to  be  a  Representative,  hold  theirs  by  a  better 

tenure  than  any  this  National  Government  can  give We  hold  these  by 

the  laws,  customs,  and  principles  of  the  Gommonwealth  of  Massachusetts. 

Behind  her  ample  shield  we  find  refuge,  and  feel  safety Sir,  I  confess 

it,  the  first  public  love  of  my  heart  is  the  Commonwealth  of  Massachusetts. 
. . .  The  love  of  this  Union  grows  out  of  this  attachment  to  my  native  soil, 
and  is  rooted  in  it.  I  cherish  it,  because  it  affords  the  best  external  hdpe 
of  her  peace,  her  prosperity,  her  independence. 

In  conclusion,  Quincy  claimed  that  the  bill,  if  passed,  would 
be  a  deathblow  to  the  Constitution.^^ 


S5  Annals  of  Congress,  11  Cong.,  3  Sess.  (1810-1811),  524-542.  An 
idea  of  the  impression  made  by  Quincy 's  speech  is  found  in  William 
Plumer's  letter  to  John  Quincy  Adams,  February  7,  1811,  in  which  he  wrote: 
**The  Orleans  territory  is  to  be  admitted  as  a  State  into  the  Union.  On 
this  question  Josiah  Quincy  made  a  long  speech  in  the  house,  &  avowed 
sentiments  more  hostile  to  the  integrity  of  the  union  of  the  States,  than,  I 
believe,  any  federalist  ever  had  the  hardihood  to  avow.  His  political  friends 
in  New  England  tax  him  with  imprudence,  &  his  enemies  with  folly  and  rash- 
ness ; ' '  Plumer  MSS.  See  also  John  Quincy  Adams,  Writi7igs  ( Ford,  ed. ) , 
IV,  207-209,  for  Adams'  opinion  of  Quincy 's  speech. 

Compare  the  reply  of  the  House  committee  of  Massachusetts  to  which 
was  referred  Governor  Strong's  speech  at  the  opening  of  the  spring  session 


Demands  for  Statehood  185 

Poindexter's  reply  to  Quincy  is  also  of  considerable  interest 
when  viewed  in  the  light  of  constitutional  interpretation.  He 
maintained  that  the  provision  of  the  Constitution  authorizing 
Congress  ''to  dispose  of  and  make  all  needful  rules  and  regula- 
tions respecting  the  territory  of  the  United  States"  contained 
an  express  recognition  of  the  right  to  possess  territory.  The 
right  to  acquire  followed  as  an  indispensable  attribute  of  sover- 
eignty. A  nation  may  extend  its  territorial  limits  either  by 
conquest  or  treaty.  No  prohibition  of  the  right  to  acquire 
territory,  either  by  war  or  compact,  was  contained  in  the  Con- 
stitution. 

The  treaty-making  power,  continued  Poindexter,  is  composed 
of  the  President  and  two-thirds  of  the  senators  present.  When- 
ever appropriations  of  money  are  necessary  to  carry  a  treaty 
into  effect,  the  House  of  Representatives  has  a  check  on  the 
other  branches.  A  treaty  once  ratified  by  each  coordinate 
department  of  the  Government  becomes  the  supreme  law  of  the 
land,  and  is  as  binding  on  the  House  as  an  article  in  the  Consti- 
tution itself.  A  distinction  existed  between  laws  and  treaties; 
laws  being  made  in  pursuance  of  the  Constitution,  treaties 
''under  the  authority  of  the  United  States."  If  an  article  in  a 
treaty  contravened  an  express  provision  of  the  Constitution  it 
would  not  be  binding.  Who  is  to  be  arbiter  between  the  treaty- 
making  power  and  the  Constitution?  Poindexter  considered  it 
ridiculous  that  this  great  power  should  be  given  to  the  Supreme 

of  1813:  ''We  are  duly  impressed  by  your  Excellency's  suggestion,  that  the 
extension  of  territorial  limits  was  never  contemplated  by  the  framers  of  the 
Constitution.  If  the  President  and  Senate  may  purchase  land,  and  Congress 
may  plant  States  in  Louisiana,  they  may  with  equal  right  establish  them  on 
the  North-West  Coast,  or  in  South- America.  It  may  be  questioned  here- 
after, whether  after  this  formation  of  new  States,  the  adherence  of  the  old 
ones  which  dissented  from  the  measure,  is  the  result  of  obligation  or  expedi- 
ency. And  it  is  evident,  that  this  multiplication  of  new  States,  not  parties 
to  the  original  compact,  must  soon  be  regarded  as  fatal  to  the  rights  and 
liberties  of  some  of  the  present  members  of  the  confederacy,  and  conse- 
quently as  an  insuperable  grievance. "  S.  E.  Morison,  The  Life  and  Letters 
of  Harrison  Gray  Otis,  II,  68-69. 


186       Constitutional  History  of  the  Louisiana  Purchase 

Court.  Should  the  other  three^^  branches  of  the  General  Gov- 
^  ernment  determine  a  treaty  to  be  constitutional,  by  passing  laws 
to  carry  it  into  effect,  it  becomes  at  once  the  supreme  law  of  the 
land,  and  so  far  as  its  stipulations  secure  personal  privileges 
and  the  rights  of  property,  they  must  be  fulfilled.  Such  an 
agreement  he  found  in  the  third  article  of  the  treaty  of  cession 
of  Louisiana. 

To  Quincy's  fear  of  loss  of  New  England's  political  power 
in  the  Union  if  the  bill  should  pass,  Poindexter  gave  a  more 
rational  answer  than  his  interpretation  of  the  force  of  treaties : 

It  results  from  the  very  nature  of  our  Government  that  political  influence 
fluctuates  in  proportion  to  the  augmentation  or  diminution  of  population 

in  the  various  sections  of  the  country If  as  the  gentleman  [Quincy]  has 

alleged,  the  proportions  of  political  power  in  the  several  States,  is  an  'in- 
alienable, essential,  intangible  right,'  it  must  forever  remain  the  same,  like 
a  chartered  privilege,  let  the  weight  of  population  rest  where  it  may.  Such 
a  principle  is  inconsistent  with  the  genius  of  a  free  Government,  and  incom- 
patible with  the  sovereign  authority  of  the  people.37 

As  might  have  been  expected,  Poindexter 's  statement  of  the 
binding  force  of  treaties  did  not  pass  unchallenged.  Thomas  R. 
Gold  of  New  York  denied  that  the  treaty-making  power  was  free 
from  all  restriction  of  the  Constitution.  If  it  were  true,  as  had 
been  asserted,  said  Gold,  that  since  the  admission  of  Louisiana 
into  the  Union  had  been  stipulated  by  the  treaty  of  purchase,  no 
provision  of  the  Constitution  could  arrest  a  bill  providing  for 
the  admission,  the  very  foundations  of  the  Constitution  would  be 
subverted.^^ 

Bibb  and  Wright  both  spoke  in  favor  of  the  bill,  justifying 
it  on  constitutional  grounds.  Key  of  Maryland  opposed  it  and 
was  answered  by  Macon.     The  indefinite  postponement  of  the 

36  Presumably  counting  the  Senate  and  House  as  separate  branches. 

ST  Annals  of  Congress,  11  Cong.,  3  Sess.  (1810-1811),  555-570.  John 
Adams  thought  Poindexter  and  others  had  offered  arguments  of  ''great 
weight"  in  answer  to  Quincy  (John  Adams,  Works,  IX,  632). 

s»  Annals  of  Congress,  11  Cong.,  3  Sess.  (1810-1811),  570. 


Demands  for  Statehood  187 

bill  which  had  been  moved  by  Quincy  was  defeated,  and  the 
main  question  that  the  bill  do  pass  was  taken,  January  15,  and 
decided  in  the  affirmative,  seventy-seven  to  thirty-six.^^ 

On  February  9,  the  House  took  up  the  Senate  amendment  to 
the  bill  to  make  the  Sabine  River  the  boundary  from  the  ocean 
to  the  thirty-second  degree  of  north  latitude  and  thence  due 
north  until  it  intersected  the  northern  boundary  line  of  Orleans 
Territory.     It  was  agreed  to  without  opposition. 

Another  amendment  of  the  Senate  proposing  to  change  the 
part  of  the  bill  declaring  that .  the  convention  should  be  chosen 
by  free  male  inhabitants,  by  adding  the  word  / '  white "  so  as  to 
exclude  free  colored  people  of  mixed  blood  from  voting,  caused 
some  debate.  Smilie  of  Pennsylvania  opposed  it.  The  bill,  he 
pointed  out,  provided  only  for  the  election  of  a  convention  to 
form  a  constitution;  after  which  the  people  could  settle  the 
matter  for  themselves  as  to  who  should  vote  for  members  of 
Congress,  etc.  Mitchill  of  New  York  thought  the  convention  and 
legislature  better  able  to  decide  the  question  than  the  House. 
The  amendment  was  negatived,*^  but  the  Senate  adhering  to  it, 
the  House  again  took  up  the  question  and  receded  from  its 
determination  to  reject  the  amendment.*^ 

The  way  was  now  open  for  Louisiana  to  enter  the  Union  as 
a  state. 


39  lUd.,  573-577. 
^olUd.,  936-937. 
41  Ihid.,  963-964. 


CHAPTER  XI 

ADMISSION  TO  STATEHOOD 

The  act  enabling  the  people  of  the  territory  of  Orleans  to 
form  a  constitution  and  a  state  government,  and  providing  for 
the  admission  of  the  state  into  the  Union  was  approved  by  the 
President  February  20,  1811.  Section  two  authorized  all  free 
white  male  citizens  of  the  United  States,  twenty-one  years  of 
age,  residing  within  the  territory  at  least  one  year  previous 
to  the  day  of  election  and  who  had  paid  a  territorial,  county, 
district,  or  parish  tax;  and  all  other  persons  having  in  other 
respects  the  legal  qualifications  to  vote  for  representatives  in 
the  general  assembly  of  the  territory,  to  choose  representatives 
to  form  a  convention.  These  representatives  were  to  be  appor- 
tioned among  the  several  counties,  districts,  and  parishes  in 
such  manner  as  the  territorial  legislature  should  direct.  The 
number  of  representatives  was  not  to  exceed  sixty.  The  date 
of  elections  for  the  representatives  was  set  for  the  third  Monday 
in  the  September  following.  The  elections  were  to  be  conducted 
in  the  same  manner  as  provided  by  the  laws  of  the  territory  for 
the  election  of  members  of  the  house  of  representatives. 

Certain  conditions  were  laid  down  in  section  three.  The 
convention,  upon  deciding  to  form  a  constitution  and  state  gov- 
ernment, must  first  declare,  in  behalf  of  the  people,  that  it 
adopted  the  Constitution  of  the  United  States;  which  having 
been  done,  the  convention  was  authorized  to  proceed  with  the 
formation  of  a  constitution  and  state  government.  It  was  stipu- 
lated that  this  constitution  must  be  republican  in  character,  and 
consistent  with  the  Federal  Constitution;  that  it  must  contain 
the  fundamental  principles  of  civil  and  religious  liberty;  that 
it  should  secure  to  the  citizens  trial  by  jury  in  all  criminal  cases. 


Admission  to  Statehood  189 

and  the  privilege  of  the  writ  of  habeas  corpus,  conformable  to 
the  Constitution  of  the  United  States;  and  that  all  legislative 
and  judicial  proceedings  and  records  must  be  in  the  English 
language.  All  waste  or  unappropriated  lands  were  to  belong  to 
the  United  States;  and  all  such  tracts  of  land  sold  by  Congress 
were  to  be  exempt  from  state  taxation  for  the  term  of  five  years 
following  the  sales.  Lands  belonging  to  citizens  of  the  United 
States,  resident  outside  the  state,  were  never  to  be  taxed  higher 
than  lands  of  persons  residing  therein.  Lands  of  the  United 
States  were  not  to  be  taxed.-  The  Mississippi  and  navigable 
waters  leading  into  it  or  the  Gulf  of  Mexico  were  to  be  common 
highways  to  the  inhabitants  of  the  proposed  state  and  all  other 
citizens  of  the  United  States,  and  free  from  state  taxation. 

Section  four  provided  that  if  the  convention  should  frame 
a  state  constitution  which  was  not  disapproved  by  Congress  at 
its  next  session,  the  state  should  be  admitted  into  the  Union, 
upon  the  same  footing  with  the  original  states. 

The  last  section  enacted  that  five  per  cent  of  the  net  proceeds 
from  the  sale  of  the  lands  of  the  United  States,  after  January  1, 
should  be  used  as  the  state  legislature  might  direct  in  the  build- 
ing of  public  roads  and  levees  in  the  state. ^ 

The  territorial  legislature  of  Orleans  Territory  made  the 
necessary  arrangements  for  the  election  of  members  of  the  con- 
stitutional convention,  leaving  out  of  consideration,  however,  the 
part  of  West  Florida  which  had  recently  been  taken  possession 
of,  because  Congress  had  not  yet  annexed  this  district  to  the 
Territory  of  Orleans. 

On  May  •  31,  1811,  Claiborne  wrote  to  Secretary  of  State 
Monroe,  enclosing  a  copy  of  his  proclamation  directing  the  elec- 
tion of  members  of  a  constitutional  convention.  He  gave  it  as 
his  belief  that  the  formation  of  a  state  government  and  admis- 


"^  Annals  of  Congress,  11  Cong.,  3  Sess.    (1810-1811),  Appendix,  1326- 
1328;  Laws  of  V.  States,  IV,  328-330. 


190       Const  it  utiotial  History  of  the  Louismna  Purchase 

sion  into  the  Union  would  strengthen  the  Union.  It  would  dis- 
*  courage  foreign  intrigues  and  internal  discontent.  A  state 
government  might  not  run  smoothly  at  first  but  would  improve 
as  the  people  gained  experience.^ 

The  convention  met  November  4,  but  its  real  work  began  on 
November  18,  1811.  A  constitution  was  drawn  up  and  adopted, 
the  stipulations  made  by  the  Federal  Government  having  first 
been  assented  to;  and  a  memorial  to  Congress  requesting  the 
annexation  of  West  Florida  to  the  new  state  about  to  be  erected 
was  also  adopted.  The  convention,  after  making  all  provisions 
deemed  necessary  for  the  carrying  of  the  constitution  into  effect 
provided  it  received  the  approval  of  Congress,  adjourned  Janu- 
ary 28,  1812.3 

A  letter  from  Claiborne  to  Monroe  on  January  31,  1812, 
introduced  to  him  Messrs.  E.  Fromentin  and  Allan  B.  Magruder, 
who  had  been  appointed  by  the  convention  as  agents  to  convey 
to  the  President  of  the  United  States  the  constitution  proposed 
for  the  new  state.  Once  again  Claiborne  remarked  that  the  gen- 
eral welfare  seemed  to  require  that  the  state  government  should 
soon  be  established.  A  majority  of  the  people  were  well  disposed 
toward  the  Government  of  the  United  States  and  admission  as 
a  state  would  strengthen  this  feeling. 

Claiborne  reported  also  that  the  agents  carried  with  them  a 
memorial  to  Congress  asking  for  annexation  of  a  part  of  West 
Florida  to  the  new  state.  The  bearing  such  an  act  might  have 
on  foreign  relations  Claiborne  thought  to  be  outside  his  province 
to  discuss.  He  felt  that  the  interests  of  the  new  state  strongly 
advised  an  enlargement  of  its  limits.  The  annexation  would  not 
only  conduce  to  the  convenience  and  prosperity  of  the  people 
more  immediately  interested,  but  to  the  national  good.* 


2  Claiborne  Papers,   ''Claiborne's   Correspondence,  Orleans   Territory," 
VI,  1809-1812. 

3  For  a  fuller  account  of  local  details,  see  Gayarre,  History  of  Louis- 
iana, TV,  266-275;   Louisiana  Gazette,  November  19  and  following  issues. 

*  Claiborne  Papers,  ''Orleans  Territory,  Miscellaneous  Papers." 


Admission  to  Statehood  191 

The  proceedings  of  the  constitutional  convention  were  trans- 
mitted to  Congress  by  President  Madison  in  a  special  message 
on  March  4,  1812.^  The  question  of  the  admission  of  Louisiana 
into  the  Union,  and  of  the  extension  of  the  laws  of  the  United 
States  thereto  was  taken  up  in  both  Houses  of  Congress.  The 
chief  difficulty,  as  shown  by  the  report  of  the  debates  in  the 
House  on  March  18  and  March  19,  was  the  disposal  of  West 
Florida.  Poindexter  offered  an  amendment  providing  that  as 
soon  as  the  consent  of  the  state  legislature  should  be  given,  this 
area  should  be  incorporated  into,  and  made  a  part  of  the  state, 
and  governed  as  if  included  within  the  original  boundaries  of 
the  state;  provided,  nevertheless,  that  the  title  of  the  United 
States  to  the  tract  should  remain  subject  to  future  negotiation. 
A  difficulty  was  here  perceived  by  Johnson  of  Kentucky  who 
said  that  the  people  of  the  Florida  district,  although  to  be  in- 
cluded within  the  new  state,  would  nevertheless  be  deprived  of 
a  voice  in  the  passage  of  the  first  laws,  and  in  the  choice  of  sen- 
ators in  Congress.  He  therefore  moved  an  amendment  to  the 
bill  dividing  the  territory  under  question  into  two  counties,  each 
to  send  one  senator  and  one  representative  to  the  state  legisla- 
ture. Poindexter  asked  how  Congress  could  say  that  those  people 
should  form  a  part  of  the  new  state  as  soon  as  its  consent  could 
be  given,  and  then  declare  that  though  by  the  terms  of  the  law 
they  were  not  a  part  of  the  people  of  the  state,  yet  they  were  to 
be  represented  in  the  legislature  of  the  state.  Clay  cut  this 
Gordian  knot  temporarily  by  remarking  that  it  being  understood 
that  a  memorial  would  be  presented  at  the  earliest  opportunity 
from  the  convention  of  Orleans  asking  for  the  annexation  of  the 
West  Florida  territory,  it  would  be  wise  to  wait  for  it,  as  there 
might  then  be  a  clearer  understanding  of  the  subject.  His 
suggestion  was  adopted.^ 


5  Eiehardson,  Messages  and  Papers  of  the  Presidents,  I,  498 ;  Annals  of 
Congress,  12  Cong.,  Part  I  (1811-1812),  1155,  message  dated  March  3. 

6  Annals  of  Congress,  12  Cong.,  Part  2   (1811-1812),  1216-1218. 


192       Constitutional  History  of  the  Louisiana  Purchase 

The  memorial  here  referred  to  was  presented  to  the  House 
on  the  next  day  J  Johnson's  amendment  was  then  taken  up. 
Calhoun  was  not  in  favor  of  incorporating  in  the  law  a  prin- 
ciple of  representation  different  from  that  feature  in  the  consti- 
tution of  the  new  state  which  arranged  for  a  different  apportion- 
ment. To  do  this  the  convention  which  alone  could  make  the 
change  would  have  to  be  reassembled.  During  the  same  debate 
he  said  that  the  people  in  question  would  be  unrepresented  only 
until  the  organization  of  the  state  government.  This  interval 
was  unavoidable  and  not  important  because  so  short.  The  pro- 
posed amendment,  he  declared,  would  be  engrafting  the  principle 
of  territorial  government  on  a  state  government,  to  which  it  was 
wholly  inapplicable.  It  was  ''assuming  to  make  a  constitution 
for  the  people  of  a  State,  whose  inalienable  right  it  was  to  form 
a  constitution  for  themselves." 

Nelson  of  Virginia  could  not  see  that  the  proposed  amend- 
ment was  incompatible  with  the  Constitution,  or  inexpedient. 
The  error  lay  in  considering  Louisiana  a  state,  which  it  would 
not  be  until  the  bill  before  the  House  passed.  Congress  still 
had  the  right  to  impose  conditions  in  the  instrument  which  was 
to  make  Louisiana  a  state.  He  felt  that  the  people  of  West 
Florida  could  not  be  constitutionally  deprived  of  representa- 
tion in  the  state  legislature.  In  answer  to  Poindexter's  doubts 
of  how  a  territory  could  be  represented  in  the  first  legislature 
of  the  state  to  which  it  was  not  annexed  until  the  consent  of  the 
legislature  should  be  obtained.  Nelson  replied  that  there  was  not 
in  existence  a  legislature  of  Louisiana,  nor  would  there  be  until 
the  bill  had  passed  raising  the  territory  to  statehood.  In  admit- 
ting the  state  into  the  Union,  having  already  imposed  conditions, 
Congress  could  impose  the  condition  proposed  by  the  amend- 
ment. Gholson  of  Virginia  considered  the  amendment,  in  its 
present  form,  to  be  incompatible  with  the  constitution  offered 

T  Annals  of  Congress,  12  Cong.,  Part  2  (1811-1812),  1219. 


Admission  to  Statehood  193 

for  the  consideration  of  Congress.  He  read  an  amendment  which 
he  proposed  to  offer  if  the  one  under  consideration  was  not 
agreed  to.  Johnson's  amendment  was  then  negatived  by  the 
close  vote  of  thirty-nine  to  thirty-seven. 

The  amendment  which  Gholson  offered  provided : 

That  the  people  of  that  portion  of  West  Florida  hereby  proposed  to 
be  made  a  part  of  the  State  of  Louisiana  shall,  before  the  election  of 
Senators  and  a  Eepresentative  to  the  Congress  of  the  United  States,  be 
invested  with,  and  enjoy  equal  rights  of  representation  and  equal  privileges 
in  every  respect,  with  the  people  of  the  residue  of  the  said  State. 

After  a  brief  debate  the  amendment  was  agreed  to  without  a 
division.^ 

The  next  day,  March  '20,  the  bill  for  the  admission  of  the 
state  of  Louisiana  into  the  Union,  and  for  the  extension  of  the 
laws  of  the  United  States  thereto  was  read  a  third  time  and 
passed  without  debate  by  a  vote  of  seventy-nine  to  twenty-three.^ 

The  Senate  had  taken  up  the  same  question,^"  but  on  March 
30,  had  turned  to  a  consideration  of  the  bill  passed  by  the 
House."  The  Senate  did  not  accept  the  House  bill  as  framed,^^ 
and  offered  amendments  to  it,  the  principal  one  being  that  which 
separated  from  the  bill  the  provision  for  extending  the  limits 
of  the  new  state  to  include  a  portion  of  the  Florida  territory. 
To  this  the  House  agreed.^^  Having  passed  both  Houses,  the 
bill  was  approved  by  the  President  April  8.  After  specifying 
the  territory  included  within  the  limits  of  the  new  state,  and 
stating  that  the  conditions  stipulated  by  Congress  had  been 
fulfilled,  it  was  enacted  that  the  new  state  was  admitted  into  the 
Union  on  an  equal  footing  with  the  original  states,  under  the 
name  of  the  state  of  Louisiana.    As  a  condition  of  incorporation 


8  Ibid.,  1224-1226. 

9lUd.,  1227. 

10  Ibid.,  Part  I,  171. 

i^IUd.,  176. 

12  Ibid.,  179,  184,  186. 


194       Constitutional  History  of  the  Louisiana  Purchase 

into  the  Union  it  was  further  enacted  that  the  Mississippi  and 
the  navigable  waters  leading  into  it  and  into  the  Gulf  of  Mexico 
must  remain  free  open  highways  to  the  citizens  of  the  United 
States.  The  other  conditions  of  the  Enabling  Act  were  consid- 
ered binding  in  like  manner. 

Section  two  provided  that  until  the  next  census  and  appor- 
tionment of  representatives,  Louisiana  was  entitled  to  one  repre- 
sentative; and  all  laws  of  the  United  States  not  locally  inap- 
plicable were  extended  to  the  state  with  the  same  force  and 
effect  as  in  the  rest  of  the  United  States. 

The  third  section  made  arrangements  for  a  judicial  district, 
and  the  fourth  for  an  United  States  attorney  and  a  marshal. 

Section  five  laid  down  customs  regulations;  and  by  the  last 
section  it  was  enacted  that  the  act  should  be  in  force  from  and 
after  April  30,  1812." 

Although  the  Senate  had  refused  to  pass  a  bill  combining 
with  the  admission  of  Louisiana  into  the  Union,  a  provision  to 
annex  to  that  state  the  disputed  district  of  West  Florida,  this 
did  not  mean  that  the  Senate  was  opposed  to  the  annexation. 
While  the  discussion  over  the  Statehood  Bill  was  going  on, 
another  bill  was  reported  in  the  Senate,  March  27,  to  enlarge  the 
limits  of  the  state  of  Louisiana  to  include  the  territory  afore- 
mentioned.^^ Having  passed  the  Senate,^^  it  was  sent  to  the 
House,^^  and  passed.^^ 

This  act,  approved  by  the  President,  April  14,  1812,  provided, 
in  case  the  legislature  of  the  state  of  Louisiana  should  consent, 
for  the  inclusion,  as  if  within  the  original  boundaries  of  the 
state,  of  the  territory  bounded  as  follows: 


13  Annals  of  Congress,  12  Cong.,  Part  2,  1254« 

14  Ihid.,  Part  2,  Appendix,  2264-2265 ;  Laws  of  TJ.  States,  IV,  402-403. 
^5  Annals  of  Congress,  12  Cong.,  Part  1   (1811-1812),  186. 

-i^^Ibid.,  194. 

n  Hid.,  Part  2,  1278. 

18  Jfeid.,  1298. 


Admission  to  Statehood  195 

Beginning  at  the  junction  of  the  Iberville  with  the  river  Mississippi; 
thence,  along  the  middle  of  the  Iberville,  the  river  Amite,  and  of  the  lakes 
Maurepas  and  Pontchartrain  to  the  eastern  mouth  of  the  Pearl  river; 
thence,  up  the  eastern  branch  of  Pearl  river  to  the  thirty-first  degree  of 
north  latitude;  thence  along  the  said  degree  of  latitude  to  the  river  Mis- 
sissippi; thence,  down  the  said  river  to  the  place  of  beginning. 

It  was  further  enacted  that  it  should  be  incumbent  upon  the 
legislature  of  the  state,  having  consented  to  the  incorporation, 
to  make  provision  by  law  at  their  first  session  for  the  representa- 
tion of  the  territory  in  the  state  legislature,  upon  principles  of 
the  Constitution,  and  for  securing  to  the  people  of  the  territory, 
equal  rights,  privileges,  benefits,  and  advantages,  with  those 
enjoyed  by  the  people  of  the  other  parts  of  the  state.  The  law 
so  providing  would  be  liable  to  revision,  modification  or  amend- 
ment by  Congress  but  not  by  the  legislature  of  the  state.^^ 

These  provisions  were  assented  to  by  the  legislature  of  Louis- 
iana, August  4,  1812.20 

On  July  30,  Claiborne  had  entered  upon  the  duties  of  the 
ofiice  of  governor  of  the  state  of  Louisiana  ;2^  with  the  pass- 
age of  the  law  above  referred  to  annexing  West  Florida  to 
Louisiana,  the  immediate  constitutional  questions  arising  from 
the  Louisiana  Purchase  came  to  an  end.  What  those  questions 
were  and  in  what  manner  they  were  decided  has  been  pointed 
out.  Although  no  definite  authority  to  do  so  was  contained  in 
the  Constitution,  the  United  States  had  acquired  territory.  That 
territory  had  been  divided  and  governed  as  Congress  and  the 
President  dictated,  and  part  of  it  had  after  a  lapse  of  years  been 
received  into  the  union  of  the  states  by  act  of  Congress  and  the 
President,  without  the  consent  of  the  individual  states.     The 


^^lUd.,  Appendix,  2270;  Laws  of  U.  States,  IV,  409. 

20  Gayarre,  History  of  Louisiana,  IV,  281.  For  the  annexation  question, 
see  iJ)id.,  IV,  276-281;  Henry  Adams,  History  of  the  United  States,  V,  319- 
326. 

21  Claiborne  to  Madison,  August  2,  1812,  in  Madison  Papers,  ''Writings 
to  Madison,"  XLVI. 


196       C onstitutimial  History  of  the  Louisiana  Purchase 

significance  of  all  these  constitutional  precedents  can  only  be 
realized  by  a  study  of  the  debates  in  Congress  over  each  new 
acquisition  of  territory,  and  by  a  careful  survey  of  the  cases 
decided  by  the  Supreme  Court  where  the  rights  of  the  inhab- 
itants of  the  acquired  territories  have  been  at  issue.  With  each 
new  extension  of  the  limits  of  the  United  States,  the  interpreta- 
tions of  the  Constitution  made  at  the  time  of  the  Louisiana  Pur- 
chase have  been  reviewed  in  argument  for  and  against  various 
provisions  of  the  new  annexations.  During  the  controversy  over 
Texas,  and,  a  little  later,  over  the  territory  acquired  from  Mexico, 
opposing  statesmen  like  Webster  and  Calhoun  found  support 
for  their  arguments  in  the  Louisiana  precedents ;  while  a  survey 
of  the  voluminous  report  of  the  Insular  Cases  of  1900  discloses 
the  fact  that  so  numerous  are  the  references  to  the  contemporary 
writings  and  debates  on  the  acquisition  of  Louisiana  that  the 
report  might  almost  serve  as  a  source  book  of  constitutional 
documents  for  that  subject. 

The  Louisiana  Purchase  is  not  a  dead  issue,  therefore,  but 
lives  on  in  the  constitutional  history  of  the  present  day.  It 
serves  as  the  corner  stone  for  all  interpretations  of  the  constitu- 
tional right  of  the  United  States  to  acquire  and  govern  foreign 
territory;  and  such  acquisitions  have  been  one  of  the  most  sig- 
nificant features  in  the  history  of  the  United  States. 


BIBLIOGRAPHY 

Manuscripts 

Claiborne  Papers.     Bureau  of  Bolls  and  Library  of  the  State  Department, 
Washington,  D.  C. 

** Claiborne 's  Correspondence  relative  to  Louisiana."     6  vols. 
''Claiborne's  Correspondence,  Orleans  Territory,  Miscellaneous."     1 
vol. 
Jefferson  Tapers.    Manuscripts  Division,  Library  of  Congress,  Washington, 
D.  C. 

"Letters  from  Jefferson,  1st  Series."    Vols.  IX,  XL 

"Letters  received  at  Washington,  2d  Series."     Vols.   XVII,  XIX, 

XXVI,  LII,  LXXVI. 
"Letters    received    at    Paris    and    Philadelphia,    2d    Series."      Vol. 

LXV. 
"Letters  to  Jefferson,  2d  Series."     Vol.  LXIII. 
Jefferson  Papers.    Massachusetts  Historical  Society  Library,  Boston,  Massa- 
chusetts. 

"The  Coolidge  Collection."  This  collection  pertains  almost  exclu- 
sively to  private  matters  and  contains  little  of  direct  political 
importance.  A  selection  of  letters  from  this  collection  is  printed 
in  the  Massachusetts  Historical  Society,  Collections,  Seventh 
series,  I  (Jefferson  Papers). 
Madison  Papers.  Manuscripts  Division,  Library  of  Congress,  Washington, 
D.  C. 

"Writings  to  Madison."     Vols.  XXVI,  XLVL 
Monroe  Papers.     Manuscripts  Division,  Library  of  Congress,  Washington, 
D.  C. 

"Writings  to  Monroe."    Vol.  IX. 
"Writings  of  Monroe."     Vol.  II. 
Pickering  Papers.    Massachusetts  Historical  Society  Library,  Boston,  Massa- 
chusetts. 

"Letters  from  Correspondents,  1800-1803."     Vol.  XXVI. 
"Letters  to  his  Correspondents,  1801-1813."     Vol.  XIV. 
Plumer  Manuscripts.    Manuscripts  Division,  Library  of  Congress,  Washing- 
ton, D.  C;  State  Library,  Concord,  New  Hampshire. 

A  large  collection  of  the  letters  and  papers  of  Senator  William 
Plumer  of  New  Hampshire.  Part  of  this  collection  is  in  the 
Library  of  Congress,  and  part  in  the  State  Library,  Concord,  New 


198       Constitutional  History  of  the  Louisiana  Purchase 

Hampshire.  Of  Plumer's  writings,  the  most  valuable  for  the 
purposes  of  this  monograph  were  the  three  volumes  of  a  journal 
of  the  debates  in  the  Senate  from  October,  1803,  to  April,  1807. 
The  first  volume  is  entitled,  "Memorandum  of  the  Proceedings 
of  Congress,  Particularly  of  the  Senate,  from  October  17,  1803, 
to  March  27,  1804";  the  second,  ''Memorandum  of  the  Proceed- 
ings of  the  second  Session  of  the  Eight  Congress  commencing 
Nov.  5th  1804  and  ending  March  3d  1805";  and  the  third, 
"William  Plumer's  Eegister,  Vol.  1,"  which,  despite  its  title,  is 
merely  a  continuation  of  the  two  former  volumes,  extending  the 
journal  from  May  2,  1805,  to  April  21,  1807.  All  of  these  volumes 
are  now  in  the  Manuscripts  Division  of  the  Library  of  Congress. 
Bol)Mns  Papers.  Massachusetts  Historical  Society  Library,  Boston,  Massa- 
chusetts. 

Vol.  VIII,  1800-1838. 


Contemporary  Pamphlets,  1803-1812 

An  Address  to  the  Government  of  the  United  States,  on  the  Cession  of 
Louisiana  to  the  French;  and  on  the  Late  Breach  of  Treaty   hy  the 
Spaniards:   including   the   translation   of   a   Memorial,   on   the   war   of 
St.  Domingo,  and  cession  of  the  Mississippi  to  France,  drawn  up  hy  a 
French  Counsellor  of  State.     Philadelphia,  Baltimore,  and  Washington 
City,  1803. 
Analysis  of  the  third  article  of  the  treaty  of  cession  of  Louisiana.     [Wash- 
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204       Constitutional  History  of  the  Louisiana  Purchase 

Cutler,  William  Parker,  and  Cutler,  Julia  Perkins. 

Life,  Journals  and  Corr/espondence  of  Bev.  Manasseh  Cutler.     2  vols. 
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Elliot,  Jonathan,  ed. 

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Farrand,  Max,  ed. 

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208       Constitutional  History  of  the  Louisiana  Purchase 

MoNETTE,  John  W. 

History  of  the  Discovery  and  Settlement  of  the  Valley  of  the  Missis- 
sippi, hy  the  three  great  European  powers,  France,  Spain,  and  Great 
Britain,  and  the  subsequent  occupation,  settlement,  and  extension  of 
civil  government  by  the  United  States,  until  the  year  1846.  2  vols. 
New  York,  1848. 

Moore,  John  Bassett. 

Digest  of  International  Law.     8  vols.     Washington,  1906. 

MoRisoN,  Samuel  Eliot. 

The  Life  and  Letters  of  Harrison  Gray  Otis.  2  vols.  Boston  and 
New  York,  1913. 

Morse,  John  Torrey,  Jr. 

Thomas  Jefferson.    Boston,  1898. 

Ogg,  Frederick  Austin. 

The  Opening  of  the  Mississippi.     New  York,  1904. 

Parton,  James. 

Life  of  Andrew  JacJcson.     3  vols.     Boston,  1870. 
Life  of  Thomas  Jefferson.     Boston,  1874. 

Phelps,  Albert. 

Louisiana.     Boston  and  New  York,  1905. 

Plumer,  William,  Jr. 

Life  of  William  Plumer.     Boston,  1857. 

QuiNCY,  Edmund. 

Life  of  Josiah  Quincy.     Boston,  1867. 

QuiNCY,  Josiah  Phillips. 

The  Louisiana  purchase  and  the  appeal  to  posterity,  in  Massachusetts 
Historical  Society,  Proceedings,  second  series,  XVIII,  48-59.  Cam- 
bridge, 1903. 

Eandall,  Henry  Stephens. 

The  Life  of  Thomas  Jefferson.     3  vols.     Philadelphia,   1888. 

Eobertson,  C.  F. 

The  Louisiana  Purchase  and  its  Influence  upon  the  American  System,  in 
American  Historical  Association,  Papers,  I,  no.  4,  pp.  249-290.  New 
York,  1886. 

Robinson,  William  A. 

Jeffersonian  Democracy  in  New  England.     New  Haven,  1916. 

Roosevelt,  Theodore. 

The  Winning  of  the  West.    6  vols.    New  York  and  London,  1900. 


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''The  World  Aspects  of  the  Louisiana  Purchase,"  in  American  His- 
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Commentaries  on  the  Constitution  of  the  United  States.  5th  ed.  2  vols. 
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APPENDIX^ 

THE  SENATE  DEBATE  ON  THE  BRECKINEIDGE  BILL  FOR  THE 

GOVERNMENT    OF    LOUISIANA,    1804,    AS    REPORTED    BY 

SENATOR  WILLIAM  PLUMER  OF  NEW  HAMPSHIRE 

1804,  Monday,  Jany.  16th. 

The  Bill  Erecting  Louisiana  into  Two  Territories 

Mr.  Worthington.2  Moved  to  amend  the  4th  section  so  as  that  the 
Legislative  Council  should  be  authorized  to  elect  a  delegate  to  Congress  with 
the  right  to  debate  but  not  vote.3 

Mr.  Brackeiiridge.^  I  approve  of  the  motion — it  will  be  the  means  of 
conveying  useful  knowledge  to  Congress. 

Mr.  Saml.  Smith.^  This  is  going  as  far  as  we  can  at  present  to  satisfy 
the  third  article  of  the  treaty.s  This  will  be  placing  that  country  on  the 
same  footing  as  the  other  territorial  governments? — and  from  this  delegate 
we  shall  derive  much  information. 

Mr.  DaytoTi.^  1  am  opposed.  The  legislative  Council  itself  will  be  better 
able  by  their  memorials  to  represent  the  actual  state  and  wants  of  that 
country  than  their  agent. 

Mr.  Jn.   Smith.^     1  think  the  amendment  is   necessary   and   important. 

1  Reprinted  from  The  American  Historical  Review,  vol.  XXII,  no.  2, 
January,  1917,  through  the  courtesy  of  Dr.  J.  Franklin  Jameson,  managing 
editor. 

2  Thomas  Worthington,  senator  from  Ohio. 

3  The  fourth  section  of  the  bill  was  that  providing  as  to  the  appointment 
and  powers  of  the  legislative  council.  It  is  quoted  in  the  Journal  of  the 
Senate  for  this  day  (III,  340  of  the  reprint  of  1821).  It  is  in  almost  every 
particular  identical  with  the  fourth  section  of  the  act  as  finally  passed.  The 
act  made  no  provision  for  a  territorial  delegate. 

*   John  Breckinridge,  senator  from  Kentucky. 

5  Samuel  Smith,  senator  from  Maryland. 

6  The  third  article  of  the  Louisiana  Treaty  provided  that  the  inhabitants 
of  the  ceded  territory  should  be  incorporated  in  the  Union  of  the  United 
States  and  admitted  as  soon  as  possible  to  the  enjoyment  of  the  privileges 
of  citizenship,  and  that  in  the  meantime  they  should  be  protected  in  the  free 
enjoyment  of  their  liberty,  property,  and  religion. 

7  At  this  time  there  was  statutory  provision  for  delegates  from  the 
Mississippi  and  Indiana  territories. 

8  Jonathan  Dayton,  senator  from  New  Jersey. 

9  John  Smith,  senator  from  Ohio. 


Appendix  211 

Mr.  PicTceringA^  No  man  will  undertake  to  say,  Louisiana  is  incorpo- 
rated into  the  Union,  it  is  therefore  absurd  to  admit  a  delegate  from  that 
country  to  debate  in  our  national  councils.  That  is  a  purchased  province 
and  as  such  we  must  govern  it. 

Mr.  White.'i-'^  I  cannot  consider  that  territory  as  a  part  of  the  Union. 
The  legislative  council  are  to  be  created  by  the  President  and  shall  they  be 
vested  with  the  power  of  choosing  a  delegate  to  Congress,  and  who  will  in 
fact  be  the  representative  of  the  President.     'Tis  wrong. 

Mr.  Jackson.^'^  I  am  opposed  to  the  motion.  The  people  of  that  country 
ought  not  to  be  represented  in  Congress.     It  is  too  soon. 

Mr.  Anderson.^^  If  this  amendment  does  not  obtain,  I  must  vote  agt.  the 
section.     What,  tax  that  people  without  their  being  represented! 

Mr.  Worthington.  What  danger  can  arise  from  this  measure — the  dele- 
gate can  only  debate  not  vote. 

Mr.  Bradley.^^  This  delegate  will  be  the  representative  of  your  Presi- 
dent not  of  that  people.  I  am  surprised  to  find  an  advocate  for  such 
doctrine.  Is  the  Executive  to  be  represented  in  the  other  House?  If  he 
can  have  one  delegate  to  represent  him,  why  not  fifty? 

Mr.  Dayton.  The  motion  is  unconstitutional.  The  constitution  has  pro- 
vided only  for  the  representation  of  States,  and  no  man  will  pretend  that 
Louisiana  is  a  State.  It  is  true  by  the  confederation!  5  provision  was  made 
for  delegates  from  territories — and  our  constitution  has  provided  tJiat  all 
contracts  and  engagements  entered  into  'before  its  adaption  shall  he  valid 
(Art.  6th)  but  no  man  will  have  the  hardihood  to  say  that  Louisiana  was 
included  in  that  engagement. 

Mr.  Adams.^^  I  was  pleased  with  this  motion — but  the  objections  aris- 
ing from  the  Constitution,  and  from  the  Delegate's  being  the  representative 
of  the  Executive  and  not  of  that  people — compels  me  reluctantly  to  decide 
against  it. 

Mr.  CocTce.^^  Gentlemen  confound  things — this  man  will  not  be  a 
representative  but  a  delegate.  The  government  of  Louisiana  has  been  com- 
pared to  other  territorial  governments,  as  Mississippi — but  this  is  wrong. 

10  Timothy  Pickering,  senator  from  Massachusetts. 

11  Samuel  White,  senator  from  Delaware. 

12  James  Jackson,  senator  from  Georgia.     • 

13  Joseph  Anderson,  senator  from  Tennessee. 

14  Stephen  E.  Bradley,  senator  from  Vermont. 

15  Bather,  by  the  ordinance  for  the  government  of  the  Northwest  Terri- 
tory, sec.  12. 

16  John  Quincy  Adams,  senator  from  Massachusetts.  Some  account  of 
the  proceedings  and  debates  upon  this  bill  will  be  found  in  his  Memoirs,  I, 
290-295. 

17  William  Cocke,  senator  from  Tennessee. 


212       Constitutimial  History  of  the  Louisiana  Purchase 

This  is  an  original  system,  founded  on  new  principles — it  is  unlike  anytliing 
in  Heaven,  in  earth  or  under  it — we  must  therefore  reason  from  itself  and 
not  compare  it  with  others — for  myself  I  admire  it.  What  part  of  the 
Constitution  shall  we  violate  by  this  amendment — none.  This  delegate  will 
not  be  a  constitutional  representative,  the  objection  therefore  is  not  solid. 
I  know  that  people  are  ignorant,  but  ignorant  people  will  always  elect 
learned  and  wise  men  to  represent  them,  they  know  the  necessity  of  it.  T 
love  and  venerate  these  people — they  live  in  the  west. 

Mr.  Brackenridge.  This  amendment  is  no  infringement  of  the  constitu- 
tion. This  officer  will  not  be  a  representative,  for  he  cannot  vote — he  will 
be  a  delegate,  and  can  only  deliberate.    He  will  have  no  legislative  power. 

Mr.  S.  Smith.  There  is  nothing  in  the  constitution  that  precludes  the 
senate  from  admitting  delegates  on  this  floor  from  the  old  territories  and 
what  is  there  that  can  restrain  us  from  admitting  Louisiana  to  send  a 
delegate  to  the  other  House?  There  can  be  no  danger  that  the  delegate  will 
mislead  or  impose  upon  the  House. 

The  motion  failed  yeas  12  nays  18. 


1804,  Tuesday,  J  any,  17  th. 

The  motion  to  extend  the  trial  by  jury  in  all  criminal  prosecutions  in  that 
territoryis  was  lost  yeas  11,  nays  16. 


1804^  Tuesday,  24th.  J  any. 

The  Bill  for  the  Government  of  Louisiana 

Mr.  JacTcson.  The  inhabitants  of  Louisiana  are  not  citizens  of  the 
United  States — they  are  now  in  a  state  of  probation.  They  are  too  ignorant 
to  elect  a  legislatureis — they  would  consider  jurors  as  a  curse  to  them. 

Mr.  MoClay.20  Those  people  are  men  and  capable  of  happiness — they 
ought  to  elect  a  legislature  and  have  jurors. 

Mr.  Saml  Smith.  Those  people  are  absolutely  incapable  of  governing 
themselves,  of  electing  their  rulers  oi  appointing  jurors.  As  soon  as  they 
are  capable  and  fit  to  enjoy  liberty  and  a  free  government  I  shall  be  for 
giving  it  to  them. 


18  The  bill  provided  for  trial  by  jury  "in  all  cases  which  are  capital"; 
the  motion  was  to  strike  out  the  words  "which  are  capital."  Journal,  III, 
343-344. 

19  The  amendment  under  discussion  provided  for  popular  election  of  the 
legislative  council. 

20  Samuel  Maclay,  senator  from  Pennsylvania. 


Appendix  213 

Mr.  Cocke.  The  people  of  that  country  are  free — let  them  have  liberty 
and  a  free  government.     This  bill  I  hope  will  not  pass — it  is  tyrannical. 

Mr.  Nicholas.2i  I  approve  of  the  bill  as  it  is.  I  am  opposed  to  giving 
them  the  rights  of  election,  or  the  power  of  having  jurors.  We  ought  not 
yet  to  give  that  people  self-government.  As  soon  as  it  is  necessary  I  will 
give  my  assent  to  that  Country's  being  admitted  as  a  state  into  the  Union. 

Mr.  Anderson.  Several  gentlemen  of  the  Senate,  I  am  sorry  to  say  it, 
appear  to  have  no  regard  for  the  third  article  of  the  treaty — they  seem 
opposed  to  freedom.  This  bill  has  not  a  single  feature  of  our  government 
in  it — it  is  a  system  of  tyranny,  destructive  of  elective  rights.  We  are  bound 
by  treaty,  and  must  give  that  people  a  free  elective  government. 

Mr.  Pickering.  That  people  are  incapable  of  performing  the  duties  or 
enjoying  the  blessings  of  a  free  government.  They  are  too  ignorant  to 
elect  suitable  men. 

Mr.  Jaclcso7y.22  Slaves  must  be  admitted  into  that  territory,  it  cannot 
be  cultivated  without  them. 

Mr.  Brackenridge.  I  am  against  slavery.  I  hope  the  time  is  not  far 
distant  when  not  a  slave  will  exist  in  this  Union.  I  fear  our  slaves  in  the 
south  will  produce  another  St.  Domingo. 

Mr.  Franklin.^^     I  am  wholly  opposed  to  slavery. 

Mr.  Dayton.  Slavery  must  be  tolerated,  it  must  be  established  in  that 
country,  or  it  can  never  be  inhabited.  White  people  cannot  cultivate  it — 
your  men  cannot  bear  the  burning  sun  and  the  damp  dews  of  that  country 
— I  have  traversed  a  large  portion  of  it.  If  you  permit  slaves  to  go  there 
only  from  your  States,  you  will  soon  find  there  the  very  worst  species  of 
slaves.  The  slave  holders  in  the  United  States  will  collect  and  send  into 
that  country  their  slaves  of  the  worst  description. 

Mr.  John  Smith.  I  know  that  country.  I  have  spent  considerable  time 
there — white  men  can  cultivate  it.  And  if  you  introduce  slaves  from  foreign 
Countries  into  that  territory,  they  will  soon  become  so  numerous  as  to 
endanger  the  government  and  ruin  that  country.  I  wish  slaves  may  be 
admitted  there  from  the  United  States.  I  wish  our  negroes  were  scattered 
more  equally,  not  only  through  the  United  States,  but  through  our  terri- 
tories— that  their  power  might  be  lost.  I  can  never  too  much  admire  the 
deep  policy  of  New  England  in  excluding  slavery.  I  thank  God  we  have 
no  slaves  in  Ohio. 


21  William  Cary  Nicholas,  senator  from  Virginia. 

22  Comparison  of  the  original  bill,  amendments,  and  amended  bills  pre- 
served in  the  Senate  files  shows  that  the  Senate  at  this  point  began  the  con- 
sideration of  an  amendment  which  extended  to  the  new  territory  the  act  of 
February  28,  1803,  forbidding  importation  of  slaves  into  states  which  pro- 
hibited their  importation. 

23  Jesse  Franklin,  senator  from  North  Carolina. 


214       Constitutional  History  of  the  Louisiana  Purchase 

Mr.  FranJcUn.  Slavery  is  in  every  respect  an  evil  to  the  States  in  the 
south  and  in  the  west,  it  will,  I  fear,  soon  become  a  dreadful  one — negro 
insurrections  have  already  been  frequent — they  are  alarming.  Look  in  the 
laws  of  Virginia  and  North  Carolina  made  for  the  purpose  of  guarding 
against  and  suppressing  these  rebellions,  and  you  will  learn  our  dangers.24 

1804,  Wednesday,  Jany.  25. 

Bill  for  the  Government  of  Louisiana. 
Question  Eelative  to  Slavery 

Mr.  Bradley.  I  am  in  favor  of  extending  slavery  to  that  country, 
because  it  is  a  right  they  claim,  and  by  the  treaty  we  are  bound  to  grant  it 
to  them — but  I  think  that  in  this  bill  we  had  better  say  nothing  on  that 
subject. 

Mr.  Killhouse.^^  Negroes  are  rapidly  increasing  in  this  country — there 
encrease  for  the  ten  years  ending  with  the  last  census  was  near  two  hundred 
thousand.  I  consider  slavery  as  a  serious  evil,  and  wish  to  check  it  wherever 
I  have  authority.  Will  not  your  slaves,  even  in  the  southern  states,  in  case 
of  a  war,  endanger  the  peace  and  security  of  those  states?  Encrease  the 
number  of  slaves  in  Louisiana,  they  will  in  due  time  rebel — their  numbers 
in  the  district  of  Orleans,  are  now  equal  to  the  whitesse — ^why  add  fuel  to 
this  tinder  box,  which  when  it  takes  fire  vnW  assuredly  extend  to  some  of 
your  states.  Why  encrease  the  evil  at  a  distant  part  of  your  territory — 
which  must  necessarily  require  a  standing  army  to  protect  it?  If  that 
country  cannot  be  cultivated  without  slaves,  it  will  instead  of  being  a  para- 
dise prove  a  curse  to  this  country,  particularly  to  some  of  the  states  in  its 
vicinity. 

Mr.  Bradley.  I  am  in  favor  of  establishing  a  form  of  a  general,  not 
particular,  government — we  ought  not  to  descend  to  particulars.  We  are 
incompetent  to  that — they  are  too  distant  from  us,  and  we  are  ignorant  of 
their  wants,  their  habits  and  manners.  Congress  is  an  improper  body  to 
make  municipal  laws — we  have  abundant  proof  of  this  in  our  legislation 
for  this  district  in  which  we  sit — our  laws  here  are  very  imperfect  and 
insufficient. 


24  Here  Senator  Plumer  gives  a  summary  of  a  letter  of  Governor  Clai- 
borne, describing  conditions  in  New  Orleans,  which  the  Senate  at  this  point 
received  from  President  Jefferson,  covered  by  his  brief  message  of  this  date, 
given  in  the  Journal  and  in  Richardson,  I,  367. 

25  James  Hillhouse,  senator  from  Connecticut. 

26  Hillhouse  probably  meant  the  district  consisting  of  the  island  of  New 
Orleans  with  its  immediate  dependencies.  In  that  case  the  numbers,  accord- 
ing to  the  statistics  which  had  been  furnished  by  Jefferson  {American  State 
Papers,  Misoellaneous,  I,  384),  were,  25,000  whites,  25,000  blacks. 


Appendix  215 

Mr.  Adams.  Slavery  in  a  normal  sense  is  an  evil;  but  as  connected  with 
commerce  it  has  important  uses.  The  regulations  offered  to  prevent  slavery 
are  insufficient,  I  shall  therefore  vote  against  them. 

Mr.  Dayton.  I  do  not  wonder  at  the  sentiments  of  the  gentleman  from 
Connecticut  (Mr.  Hillhouse),  for  he  has  been  opposed  to  everything  that 
relates  to  Louisiana — he  appears  to  me  to  wish  to  render  this  bill  as  bad  as 
possible ;  but  I  am  surprised  that  gentlemen  who  are  friendly  to  that  country, 
wish  to  prohibit  slavery — it  will  barr  the  cultivation  and  improvement  of 
that  extensive  territory.  The  lives  of  white  people  are  shorter  there  than 
in  any  of  our  states,  and  the  labour  of  slaves  more  necessary.  An  elective 
government  and  trial  by  jury  would  be  a  curse  to^that  people;  but  slavery 
is  essential  to  their  existence. 

Mr.  Hillhouse.  I  do  not  understand  the  doctrine  nor  censures  of  the 
gentleman  from  New  Jersey  (Mr.  Dayton).  The  constitution  is  by  him 
winked  out  of  sight — that  admits  of  a  republican  government  and  no  other. 
We  must  apply  the  constitution  to  that  people  in  all  cases  or  in  none.  We 
must  consider  that  country  as  being  within  the  Union  or  without  it — there 
is  no  alternative.  I  think  myself  they  are  not  a  part  or  parcel  of  the 
United  States. 

Mr.  John  Smith.  I  have  traversed  many  of  the  settlements  in  that 
country.  I  know  that  white  men  labour  there — they  are  capable  of  cultivat- 
ing it.  Slaves  ought  not  to  be  permitted  to  set  their  feet  there.  Introduce 
slaves  there,  and  they  will  rebel.  That  country  is  full  of  swamps — negroes 
can  retire  to  them  after  they  have  slain  their  masters.  This  was  in  fact 
the  case  not  eighteen  years  since — they  rose,  slew  many,  and  fled  to  the 
morasses.27  Will  you  encrease  there  number,  and  lay  the  necessary  foun- 
dation for  the  horrors  of  another  St.  Domingo?  If  slaves  are  admitted 
there,  I  fear,  we  shall  have  cause  to  lament  the  acquisition  of  that  country — 
it  wiU  prove  a  curse. 

Mr.  Jackson.  The  treaty  forbids  this  regulation.  It  will  depreciate 
your  lands  there  fifty  pr  cent.  I  am  a  Eice-planter — my  negroes  tend  three 
acres  each  pr  man — I  never  work  them  hard,  they  finish  their  stint  by  one 
or  two  o'clock,  and  then  make  three  shillings  pr  diem  to  themselves.  I 
know  that  a  white  man  cannot  cultivate  three  acres  of  rice,  and  yet  Georgia 
is  not  so  warm  as  Louisiana.  You  cannot  prevent  slavery— neither  laws 
moral  or  human  can  do  it.  Men  will  be  governed  by  their  interest,  not  the 
law.     We  must  keep  the  third  article  of  the  treaty  always  in  view. 

Mr.  Anderson.  On  the  ground  of  the  interest  of  the  western  states,  the 
admission  of  slaves  into  Louisiana  ought  to  be  opposed — it  will  prove  a 


27  Possibly  the  reference  is  to  the  abortive  attempt  at  insurrection  in 
Pointe  Coupee  parish  in  1795,  eight  years  before. 


216       Constitutional  History  of  the  Louisiana  Purchase 

curse  to  us.  By  the  constitution  slavery  is  criminal.  All  the  States,  except 
South  Carolina,  have  passed  laws  against  the  importation  of  slaves.ss 

Mr.  White.  I  think  it  unfortunate  that  whenever  this  question  is  stirred, 
feelings  should  be  excited  that  are  calculated  to  lead  us  astray.  I  have 
entertained  the  hope  that  Congress  would  on  all  occasions  avail  themselves 
of  every  mean  in  their  power  to  prevent  this  disgraceful  traffick  in  human 
flesh.  There  is  nothing  in  the  treaty  that  guarantees  to  the  people  of  that 
Country  the  power,  I  will  not  say  right,  of  holding  slaves.  'Tis  our  duty 
to  prevent,  as  far  as  possible,  the  horrid  evil  of  slavery — and  thereby  avoid 
the  fate  of  St.  Domingo.  Nothing  but  the  interposition  of  Heaven,  an 
unusual  thunder-storm,  prevented  the  slaves,  only  two  years  since,  from 
destroying  Eichmond  in  Virginia.29  That,  and  other  states  are  obliged 
annually  to  make  many  severe  and  expensive  provisions  •  to  protect  and 
guard  the  lives  of  the  masters  and  their  families  against  the  violence  of 
the  slaves. 

It  is  said  that  Ijouisiana  cannot  be  cultivated  by  white  men.  May  not 
this  proceed  from  the  very  circumstance  of  their  having  slaves.  Let  white 
men  be  accustomed  to  the  culture  of  that  country,  and  they  will,  I  believe, 
find  they  are  able  to  bear  the  fatigue  of  it.  We  may  by  use,  by  long  habit, 
be  brought  to  bear  heat  and  fatigue  as  well  as  blacks.  We  boast  of  liberty 
and  yet  in  the  very  bosom  of  our  Country,  establish  slavery  by  law.  Exam- 
ine the  state  of  this  Union.  In  the  Eastern  States  where  slavery  is  not 
suffered,  their  lands  are  highly  cultivated — their  buildings  neat,  useful  and 
elegant — and  the  people  are  strong,  powerful  and  wealthy.  But  as  you 
travel  south,  the  instant  you  arrive  to  where  slavery  is,  you  find  the  lands 
uncultivated,  the  building  decaying  and  falling  into  ruins  and  the  people 
poor  weak,  and  feeble.  This  is  not  the  effect  of  climate — for  our  southern 
climates  are  more  favorable  than  the  eastern  and  the  northern. 

Mr.  Bradley.  I  am  opposed  to  slavery  in  the  eastern  states;  but  the 
resolution  under  consideration  admits  the  principle  of  slavery,  and  there- 
fore I  shall  vote  against  it. 

Mr.  White.  I  shall  vote  for  it  not  because  I  wholly  approve  of  it,  but 
because  I  think  it  as  favorable  toward  people  of  colour  as  anything  we  can 
now  obtain. 

Mr.  Saml  Sm/ith.  1  am  at  a  loss  to  know  why  the  gentleman  from 
Massachusetts  (Mr.  Adams)  has  so  often  considered  and  declared  himself 
as  the  exclusive  advocate  for  constitutional  rights.  I  am  against  this  motion. 
The  people  of  that  country  wish  for  African  slaves,  and  we  ought  to  let  them 
have  a  supply — we  have  a  constitutional  right  to  prohibit  slavery  in  that 

28  By  successive  enactments,  from  1787  to  1803,  South  Carolina  had,  like 
the  other  states,  forbidden  the  importation  of  slaves,  but  these  laws  had 
just  been  repealed,  December  17,  1803,  and  the  trade  reopened. 

29  The  reference  is  to  Gabriel's  Insurrection,  September,  1800. 


Appendix  217 

country,  but  I  doubt  as  to  the  policy  of  it — I  shall  vote  against  the  motion. 
We  are  bound  to  provide  for  the  support  of  the  clergy  of  that  country. 

Mr.  Hillhouse.  The  gentleman  from  Vermont  (Mr.  Bradley)  is  opposed 
to  slavery.  To  prove  his  opposition  he  declares  he  will  vote  against  this 
resolution,  which  is  designed  to  limit  slavery  to  those  who  are  in  the  country 
— and  if  he  prevails  in  his  opposition,  the  consequence  will  be  that  the 
people  of  Louisiana  will  h»ve  the  liberty  of  importing  slaves  not  only  from 
the  United  States,  })ut  also  directly  from  Africa.  If  that  country  cannot  be 
cultivated  without  slaves,  let  slaves  hold  it — or  let  it  remain  a  wilderness 
forever.  Those  are  the  real  friends  of  liberty  who  extend  it  to  others,  as 
well  as  to  themselves. 

Mr.  Israel  Smith.so  The  provision  proposed,  is  insufficient — it  will 
rather  encrease  than  prevent  slavery.  I  am  opposed  to  slavery  but  as 
Congress  cannot  prohibit  it  effectually  till  1808 — and  as  there  are  many 
slaves  in  Louisiana  I  think  the  change  proposed  will  be  too  sudden — that  it 
will  operate  as  an  encouragement  to  South  Carolina  to  import  slaves. si  I 
am  therefore  opposed  to  doing  anything  upon  the  subject  at  the  present. 

No  vote  taken  on  the  subject. 


1804,  Thursday,  Jany.  26. 

Government  of  Louisiana — Slavery 

Mr.  Eillhouse.  I  have  been  accused  of  being  unfriendly  to  this  territory 
— and  of  having  made  the  motion  now  under  discussion  not  from  a  regard 
to  that  country  or  its  inhabitants  but  to  embarrass  the  measures  of  govern- 
ment. I  was  opposed  to  the  ratification  of  the  treaty,  but  as  that  is  past, 
I  am  bound  to  act  in  relation  to  that  country  upon  such  principles  as  to  me 
appear  correct  and  calculated  to  promote  the  general  interest  of  the  Nation. 
And  I  hope  I  shall  never  find  it  necessary  to  adduce  evidence  to  prove  the 
sincerity  of  my  disposition  or  the  truth  of  my  declaration.  It  has  been 
said  on  this  floor  that  I  am  an  Eastern  man.  I  am  so,  but  while  1  am  the 
representative  of  a  State  which  is  yet  a  member  of  the  Union,  I  hope  I 
shall  have  as  much  influence  as  if  I  was  a  soutliern  man.  I  did  not  expect 
so  soon  to  hear  on  this  floor  the  distinction  of  eastern  and  northern,  and 
southern,  men.  Has  it  indeed  come  to  this — are  we  to  be  designated  by  a 
geographical  line? 

The  question  was  on  the  following  motion,  to  wit. 

''That  it  shall  not  be  lawful  for  any  persons  or  persons,  to  import  or 
bring  into  the  said  territory,  from  any  port  or  place  without  the  limits  of 
the  United  ■States,  or  to  cause  or  procure  to  be  so  imported  or  brought,  or 

30  Israel  Smith,  senator  from  Vermont. 

31  See   note   28   above. 


218       Constitutional  History  of  the  Louisiaiia  Purchase 

knowingly  to  aid  or  assist  in  so  importing  or  bringing,  any  slave  or  slaves; 
and  every  person  so  offending  and  being  thereof  convicted,  before  any  court 
within  the  said  territory,  having  competent  jurisdiction,  shall  forfeit  and 

pay,  for  each  and  every  slave,  so  imported  or  brought  the  sum  of 

dollars,  one  moiety  for  the  use  of  the  United  States,  and  the  other  moiety, 
for  the  use  of  the  person  or  persons  who  shall  sue  for  the  same ;  and  every 
slave  so  imported  or  brought,  shall  thereupon  become  entitled  to  and  receive 
his  or  her  freedom. ' ' 

Note,  This  amendment  was  presented  by  Mr.  Hillhouse.32 

Mr.  Jackson.  Slavery  must  be  established  in  that  country  or  it  must 
be  abandoned.  Without  the  aid  of  slaves  neither  coffee  or  cotton  can  be 
raised.  My  interest  is  to  prevent  slavery  in  that  country,  because  that  will 
prevent  its  settlement,  and  thereby  raise  the  value  of  estates  in  Georgia — 
but  my  duty  is  in  this  opposed  to  my  interest,  and  that  of  my  State. 

I  think  it  would  be  for  the  real  interest  of  the  United  States  to  have  an 
end  to  slavery  in  this  country;  but  we  cannot  get  rid  of  them. 

I  am  against  the  prohibition — let  those  people  judge  for  themselves — 
the  treaty  is  obligatory  upon  us. 

I  dislike  the  traffic  in  human  flesh — but  we  must  decide  not  on  the 
morality  but  policy  of  the  case. 

The  present  time  is  an  improper  time  to  prohibit  the  importation  of 
slaves  into  that  country — our  government  is  not  yet  established  there. 

Slaves  in  America  are  generally  well  fed  clothed  and  taken  care  of — our 
interest  obliges  us  to  do  it — they  live  better  than  if  they  were  free — they 
are  incapable  of  liberty. 

Mr.  Dayton.  These  very  debates  will  encrease  the  hopes  of  slaves.  You 
are  about  to  prohibit  African  slaves  from  that  country — and  to  admit  the 
worst  of  slaves — such  as  the  southern  planters  wish  to  sell: — I  say  admit 
slaves  for  slaves  must  cultivate  Louisiana — white  people  cannot  subsist 
there  without  them. 

The  faith  of  the  nation,  is  by  the  treaty,  pledged  to  that  people,  that  their 
rights  shall  be  secured  to  them — one  of  ther  rights  is  slavery. 

It  is  of  importance  that  we  should  raise  our  own  sugar — that  we  can  do 
if  we  have  slaves. 

Mr.  Bradley.  The  prohibiting  slaves  in  that  territory  from  Africa,  and 
admitting  them  from  the  States,  will  encrease,  not  lessen,  slavery.  Each 
State  can  till  1808  import  slaves  from  Africa,  and  by  this  law  the  slave 
states  may  send  their  vicious  slaves  to  Louisiana. 

Mr.  Brackenridge.  I  have  no  hesitation  in  saying,  That  the  treaty  does 
not  in  the  smallest  degree  authorize  that  people  to  hold  slaves — much  less 


32  This  amendment  of  Hillhouse,  preserved  in  manuscript  in  the  Senate 
files,  is  that  which  appears  in  the  printed  Journal,  III,  345. 


Appendix  219 

does  it  pledge  the  faith  of  the  Union  to  support  this  unjust,  unnatural 
traffic.  When  I  look  at  the  Census,  I  am  alarmed  at  the  encrease  of  slaves 
in  the  southern  states.  I  consider  slavery  as  an  evil — and  am  for  confining 
it  within  as  small  a  compass  as  possible. 

Mr.  Bradley.  I  am  against  slavery — but  this  provision  is  insufficient, 
and  I  shall  vote  against  it.  If  the  States  holding  slaves,  require  it,  I  will 
go  as  far  as  they  wish  in  abolishing  slavery,  for  I  am  an  enemy  to  it.  But 
that  time  is  not  yet  come — the  public  mind  is  not  ready  for  it — and  I  think 
we  had  now  better  do  nothing  upon  the  subject. 

Mr.  Samuel  Smith.  I  am  sorry  this  proposition  is  brought  before  the 
Senate — I  am  against  slavery — but  I  shall  vote  against  this  proposition — 
and  I  fear  it  will  thereby  appear  that  I  am  in  favor  of  slavery.  Yet  let 
it  be  remembered,  that  although  I  am  a  slave  holder,  I  declare  I  disapprove 
of  slavery. 

Mr.  FranMin.  My  wish  is  to  prohibit  slaves  altogether  from  that  coun- 
try, except  those  carried  thither  by  actual  settlers  from  the  United  States — 
but  I  dispair  of  obtaining  such  a  vote  in  Senate — I  will  vote  for  such  a 
prohibition  as  I  can  obtain. 

I  have  no  objection  to  sending  a  frigate  to  Charlestown  to  prevent  the 
landing  of  slaves  from  Africa  imported  by  South  Carolina — and  frittering 
those  nefarious  traders  to  pieces. 

Mr.  JacTcson.  Gentlemen  from  the  north  and  the  east  do  not  know  that 
white  men  cannot  indure  the  heat  of  a  vertical  sun — they  cannot  cultivate 
and  raise  a  crop  of  rice — negroes  are  necessary  for  that  country.  It  is  as 
impossible  to  prevent  the  importation  of  them  into  that  country  as  to  move 
the  sun  into  the  moon.  Human  power  and  invention  cannot  prevent  it. 
Within  less  than  a  year  10,000  slaves  have  against  law  been  imported  into 
South  Carolina  and  Georgia.ss  'Tis  in  vain  to  make  laws  upon  this  subject. 
Slaves  directly  from  Africa  are  preferable  to  those  who  have  been  long  in 
this  country  or  even  to  those  born  here.  I  am  sorry  that  the  constitution  of 
Georgia  prohibits  slavery.34  ' 

Mr.  Pickering.  When  this  subject  was  first  brought  up  I  was  favorably 
inclined  to  the  admission  of  slavery  in  that  territory — but  the  discussion  has 
convinced  me  that  it  will  be  bad  policy  indeed  to  admit  slaves  there — that 
it  will  entail  upon  their  posterity  a  burthen  they  will  be  unable  to  bear  or 
remove — and  that  slaves  are  unnecessary  there — ^white  people  can  cultivate 
it.     I  therefore  approve  of  the  resolution. 


33  See  the  statements  of  Lowndes  of  South  Carolina  and  Mitchell  of  New 
York  in  the  House  debate  of  February  14,  1804.  Annals  of  Congress, 
8  Cong.,  1  Sess.,  pp.  992,  1000. 

34  The  constitution  of  Georgia,  1798,  art.  IV,  sec.  11,  prohibited,  not 
slavery,  but  the  future  importation  of  slaves  into  that  state  from  Africa 
or  any  foreign  place. 


220       Constitutional  History  of  the  Louisiana  Purchase 

Mr.  Bradley.  This  resolution  supports  slavery.  I  shall  therefore  vote 
against  it,  although  it  is  bro  't  forward  by  those  who  wish  to  destroy  slavery. 
The  Constitution  of  Vermont  declares  all  men  free — I  have  sworn  to  support 
it,  and  I  will. 

Mr.  Israel  Smith.  I  am  opposed  to  this  resolution,  because  it  will  not 
prevent  slavery — I  am  opposed  to  slavery;  but  I  think  no  law  can  prevent 
or  destroy  it — the  law  will  be  useless  and  therefore  I  shall  vote  against  it. 
If  a  law  was  made  to  prohibit  the  use  of  cyder  in  New  England,  where  it 
is  now  being  used  in  every  family,  could  you  carry  it  into  effect.  This  is 
the  case  of  slaves  in  that  country.  We  cannot  till  1808  pass  any  effectual 
law  against  slavery.  South  Carolina  has  opened  its  ports  for  the  importa- 
tion of  slaves  from  Africa,  and  this  she  has  a  right  to  do. 

The  people  of  Louisiana  ought  not  to  be  subject  to  much  change  in 
government,  laws,  or  habits  at  present.  They  are  not  yet  bound  to  us  by 
any  ties.  This  resolution  will  estrange  them  from  us — it  will  oppress 
them.  It  cannot  be  carried  into  effect.  It  will  give  encouragement  to  the 
States  in  1808  to  resist  any  laws  that  we  may  then  constitutionally  make 
to  abolish  slavery.  I  therefore  hope  we  shall  no^i;  do  nothing  relative  to 
slavery. 

Mr.  Samuel  Smith.  I  wish  I  could  prevent  the  taking  of  the  yeas  and 
nays  when  the  Senate  are  sitting  in  Committee  of  the  whole — I  dislike  it — 
it  is  absurd. 

Mr.  Jackson.  It  is  now  more  than  half  past  three  P.M.  and  I  move  for 
an  adjournment.  Eefused.  He  then  said,  It  is  unfair  for  a  majority  thus 
to  press  the  subject. 

The  question  was  then  taken  on  the  amendment  (page  316)36  and  pre- 
vailed, yeas  21,  nays  6. 

Mr.  Bradley.  As  tomorrow  is  to  be  a  day  of  festivity  on  account  of 
the  acquisition  of  Louisiana,37  i  move  that  the  Senate  adjourn  to  Monday 
next. 

Negatived. 

After  the  Senate  was  adjourned,  he  said  with  great  passion  that  he 
would  not  on  the  morrow  either  attend  the  Senate  or  the  feast.  He  kept 
his  word. 

1804,  Monday,  Jany.  30. 

Mr.  BLillhouse  moved  the  following  amendment,  to  the  Louisiana  bill. 

''That  no  male  person  bro't  into  said  territory  of  Louisiana,  from  any 
part  of  the  United  States,  or  territories  thereof,  or  from  any  province  or 

35  See  J.  Q.  Adams,  Memoirs,  I,  292-293. 

36  Of  the  manuscript.     Hillhouse  's  amendment,  see  note  36. 

37  J,  Q.  Adams,  Memoirs,  I,  293. 


Appendix  221 

colony  in  America  belonging  to  any  foreign  prince  or  state,  after  the 

day  of  next,  ought  or  can  be  holden  by  law  to  serve  for  more  than 

the  term  of  one  year,  any  person  as  a  servant,  slave,  or  apprentice,  after 
he  attains  the  age  of  21  years;  nor  female  in  like  manner,  after  she  attains 
the  age  of  18  years,  unless  they  are  bound  by  their  own  voluntary  act,  after 
they  arrive  to  such  age,  or  bound  by  law  for  the  payment  of  debts,  damages, 
fines,  or  costs.  Provided,  that  no  person  held  to  service  or  labor  in  either 
of  the  States  or  territories  aforesaid,  under  the  laws  thereof,  escaping  into 
said  territory  of  Louisiana,  shall  by  anything  contained  herein,  be  discharged 
from  such  service  or  labor,  but  shall  be  delivered  up  in  the  manner  pre- 
scribed by  law.  "38 

Mr.  Hillhouse.  I  am  in  favor  of  excluding  slavery  from  that  Country 
altogether.  Every  slave  increases  the  necessity  of  a  standing  army.  Every 
slave  weakens  the  power  of  the  militia.  The  distance  from  the  States 
encreases  the  necessity  of  excluding  slavery  there. 

Mr.  Bradley,  made  a  few  observations  in  support  of  the  amendment. 

It  was  rejected  yeas  11,  nays  17. 

Mr.  Hillhouse  then  offered  the  following  amendment, 

''That  it  shall  not  be  lawful  for  any  person  or  persons,  to  import  or 
bring  into  the  said  territory,  from  any  port  or  place  within  the  limits  of 
the  United  States,  or  cause  to,  or  procure  to  be  so  imported  or  bro't,  or 
knowingly  to  aid  or  assist  in  so  importing  or  bringing,  any  slave  or  slaves, 

which  shall  have  been  imported,  since  the  day into  any  port  or 

place  within  the  limits  of  the  United  States,  from  any  port  or  place  without 
the  limits  of  the  United  States;  and  every  person  so  offending  and  being 
thereof  convicted,  before  any  court  within  the  said  territory,  having  com- 
petent jurisdiction,  shall  forfeit  and  pay  for  each  and  every  such  slave,  so 

imported   or   bro't,   the   sum   of  dollars:    one  moiety   for   the 

use  of  the  person  or  persons  who  shall  sue  for  the  same. '  'so 

Mr.  Hillhouse,  observed  this  was  but  a  part  of  the  system  necessary  to 
be  adopted. 

Mr.  Dayton.  South  Carolina  has  now  a  constitutional  right  to  import 
slaves  from  Africa — she  is  in  the  exercise  of  that  right — and  this  amendment 
impairs  it. 

Mr.  Hillhouse.     It  does,  and  justly. 

Mr.  Jaclcson.  It  is  unfortunate  that  we  have  slaves;  but  having  them 
we  cannot  with  safety  or  policy  free  them.  A  very  few  free  negroes  in 
Louisiana  would  revolutionize  that  country.     In  Georgia  we  prohibit  men 


38  Journal,  III,  346-347. 

39  The  amendment  presented  at  this  time  by  Hillhouse  (Journal,  III, 
347)  embraces  both  this  text  and  that  which  appears  at  the  beginning  of 
the  next  day's  proceedings  in  this  record,  and  of  p.  353. 


222       Constitutional  History  of  the  Louisiana  Purchase 

from  manumitting  their  slaves'^o — one  free  negro  is  more  dangerous  where 
there  are  slaves  than  a  100  slaves.     I  will  join  to  export  all  the  slaves. 

Mr.  Hillhouse.  I  believe  slavery  is  a  real  evil;  but  I  am  sensible  we 
must  extinguish  it  by  degrees.  It  will  not  do  to  attempt  to  manumit  all  the 
slaves  at  once.  Such  a  measure  would  be  attended  with  serious  evils.  These 
slaves  are  men — they  have  the  passions  and  feelings  of  men.  And  I  believe 
if  we  were  slaves,  we  should  not  be  more  docile,  more  submissive,  or  virtuous 
than  the  negroes  are. 

Mr.  Nicholas.  Free  men  of  colour  have  a  very  ill  effect  upon  slaves — 
they  do  much  more  mischief  than  strangers  conceive  of. 

Mr.  Adams.  The  general  complaint  against  gentlemen  from  the  eastern 
States  has  been  that  they  have  discovered  too  much  opposition  to  slavery. 
I  am  opposed  to  slavery;  but  I  have  in  this  bill  voted  against  the  provisions 
introduced  to  prohibit  and  lessen  it.  I  have  done  this  upon  two  principles, 
1.  That  I  am  opposed  to  legislating  at  all  for  that  country.  2.  I  think  we 
are  proceeding  with  too  much  haste  on  such  an  important  question. 

Mr.  Bradley.  I  abhor  slavery.  I  am  opposed  to  it  in  every  shape. 
He  that  steals  a  man  and  sells  him  ouffht  to  die.^'i-  I  will  on  every  occasion 
vote  against  slavery.  I  am  very  sorry  the  question  is  now  called  up.  I  have 
done  everything  I  could  to  prevent  it — but  since  gentlemen,  (and  many  of 
them  from  Slave  States)  will  stir  the  question,  I  am  prepared  and  will  on 
all  occasions  vote  against  slavery. 

The  amendment  was  adopted,  yeas  21,  nays  7. 

1804,  Tuesday,  J  any.  31. 

Bill  Eelating  to  Louisiana 

Motion  to  strike  out  the  following  words,  from  the  amendment  to  the 
bill. 

''And  no  slave  or  slaves  shall  directly  or  indirectly  be  introduced  into 
said  territory,  except  by  a  person  or  persons  removing  into  said  territory  for 
actual  settlement,  and  being  at  the  same  time  of  such  removal  l)ona  fide 
owner  of  such  slave  or  slaves;  and  every  slave  imported  or  bro't  into  the 
said  territory,  contrary  to  the  provisions  of  this  act,  shall  thereupon  be 
entitled  to,  and  receive  his  or  her  freedom.  "42 

Mr.  Bradley.  I  am  opposed  to  this  paragraph,  because  it  admits  the 
doctrine  of  slavery  to  be  just — it  is  like  a  law  regulating  theft  or  any  other 
crime,  I  shall  therefore  vote  to  expunge  it.  I  really  consider  slavery  as  a 
moral  evil — as  a  violation  of  the  laws  of  God — of  nature — of  Vermont. 


40  A  Georgia  act  of  1801  made  manumission  illegal  unless  accomplished 
by  act  of  the  legislature.     Cobb,  Digest,  p.  983. 

41  Exodus  XXI,  16. 

42  See  note  39  above.     The  motion  also  provided  a  substitute  with  slight 
modifications.     Journal,  I,  348. 


Appendix  223 

Mr.  Nicholas.  The  gentleman  from  Vermont  (Mr.  Bradley)  has  sur- 
prised me  by  his  extraordinary  conduct — for  several  days  he  spoke  and 
voted  with  his  friends  who  advocated  slavery — but  yesterday  and  today  he 
has  avowed  other  sentiments  and  changed  his  vote.  He  is  now  become 
vociferous  for  emancipation.  Is  he  apprehensive  the  restriction  will  pre- 
vail. Is  he  afraid  of  finding  his  name  on  the  journal  against  the  vote.  Why 
this  unaccountable  change? 

Mr.  Bradley.  I  have  not  changed  my  sentiments.  I  am  unwilling  to 
have  the  question  stirred.  I  was  desirous  of  shutting  my  eyes  against  the 
subject — but  since  I  am  compelled  to  act,  I  will  vote  in  favor  of  liberty. 

Mr.  Jackson.  If  this  law  with  these  amendments  passes  you  destroy 
that  country — you  render  it  useless — you  will  excite  alarms  in  the  mind  of 
Frenchmen — you  will  render  a  standing  army  necessary.  I  again  say  that 
country  cannot  be  cultivated  without  slaves — it  never  will. 

Mr.  John  Smith.  1  am  willing  to  admit  slaves  into  that  country  from 
the  U.S.,  because  slaves  are  already  there,  but  I  am  unwilling  to  admit  them 
from  Africa.  You  cannot  prevent  slaves  going  there  from  the  United  States. 
I  know  this  is  an  evil,  but  it  is  an  evil  they  will  have. 

Mr.  Saml  Smith.  When  the  prohibition  of  slavery  was  first  introduced 
into  this  bill  I  was  much  alarmed.  I  foresaw  it  would  take  up  time — that 
it  would  create  alarm  and  even  endanger  the  peace  and  security  of  these 
States  holding  slaves — especially  when  the  subject  is  debated  in  the  other 
House — and  those  debates  published  in  Newspapers.  God  knows  that  I 
am  not  friendly  to  slavery,  although  I  own  slaves  and  live  in  a  state  where 
slavery  is  established  by  law.  I  am  unwilling  to  think  much  less  to  speak 
on  this  subject.  This  bill  if  passed  into  a  law  cannot  be  carried  into  effect 
— the  people  of  that  country  will  not  submit  to  it.  I  will  render  a  standing 
army  necessary.  In  the  year  1808  we  may  then  effectually  legislate  on  the 
subject — the  constitution  will  then  admit  of  it,  and  our  navy  will  then  enable 
us  to  carry  it  into  effect.  American  slaves  carried  to  Louisiana  will  prove 
adders  that  will  sting  that  people  to  the  heart.  The  report  of  your  debate 
in  this  Senate  on  this  subject  will  reach  that  country  in  twelve  days,  and 
I  fear  will  produce  a  rebellion — our  troops  there  are  few  and  feeble,  and 
will  be  unable  to  prevent  it. 

Mr.  John  Smith.  If  the  slaves  now  in  the  southern  States  continue  to 
encrease,  in  20  or  30  years  those  States  will  be  compelled  to  call  on  the 
eastern  and  western  states  to  aid  them  against  their  rebellious  slaves. 

Mr.  Franlclin.  We  cannot  wink  this  subject  out  of  sight — if  we  leave 
it,  it  will  follow  us.  We  must  make  laws  against  slavery,  unless  we  mean 
to  aid  the  destruction  of  our  southern  States,  by  laying  the  foundation  for 
another  St.  Domingo.  Slavery  is  a  dredful  evil — ^we  feel  it  in  North  Caro- 
lina— we  can  emancipate.  I  am  for  restraining  foreign  importation,  but 
to  proceed  no  further. 


224       Constitutional  History  of  the  Louisiana  Purchase 

Mr.  Brackenridge.  "We  can  make  laws  to  prevent  slaves,  and  we  can 
carry  those  laws  into  effect — if  we  cannot  do  this  our  power  is  too  feeble 
'to  govern  this  nation.  We  must  not  despair — ^we  must  act.  We  are  legis- 
lating for  a  great  country — for  an  important  section  of  the  nation.  In 
doing  this  I  will  not  for  a  moment  attend  to  its  inmiediate  effects,  whether 
it  will  lessen  or  encrease  sugar,  or  other  articles.  No  Sir,  I  extend  my  views 
to  posterity.  It  is  of  importance  that  our  first  acts  of  Legislation  should 
be  correct.    Can  it  be  right  to  extend  and  foister  slavery  into  that  country? 

I  think  it  good  policy  to  permit  slaves  to  be  sent  there  from  the  United 
States.  This  will  disperse  and  weaken  that  race — and  free  the  southern 
states  from  a  part  of  its  black  population,  and  of  its  danger.  If  you  do 
not  permit  slaves  from  the  United  States  to  go  there,  you  will  thereby 
prohibit  men  of  wealth  from  the  southern  States  going  to  settle  in  that 
country. 

It  has  been  said  by  the  gentleman  from  Vermont  (Mr.  Bradley)  that 
liberty  cannot  exist  with  slavery.  This  is  not  correct — it  exists  in  these 
states  who  have  slaves.  Our  constitution  recognizes  slavery — it  does  more — 
it  expresly  protects  it. 

Mr.  Nicholas.  One  State  only,  South  Carolina,  can  now  import  Slaves — 
and  that  is  a  right  derived  not  from  Congress,  but  from  the  constitution — 
it  is  a  mere  temporary  right.  The  people  of  Louisiana  cannot  therefore 
complain  of  partiality  in  Congress  because  we  deny  them  the  liberty  of 
importing  foreign  slaves.  It  is  no  more  than  what  we  long  since  denied 
to  the  Mississippi  and  Ohio  territories.  We  are  now  making  a  form  of  gov- 
ernment for  Louisiana,  not  establishing  a  common  and  ordinary  law.  I  am 
for  prohibiting  the  people  of  that  country  from  importing  slaves  from 
foreign  countries,  and  leave  it  optional  with  the  government  of  Louisiana, 
when  they  have  one,  to  prohibit  it  from  the  United  States  also,  if  they 
should  think  best. 

Mr.  Adams.  I  do  not  like  either  of  the  amendments  that  have  been 
offered,  but  if  I  must  vote  for  either  it  will  be  to  retain  the  word  moved 
to  be  struck  out.  If  I  must  vote  it  will  be  in  favor  of  liberty.  The  Con- 
stitution does  not  recognize  slavery — it  contains  no  such  word — a  great  cir- 
cumlocution of  words  is  used  merely  to  avoid  the  term  slaves. 

Mr.  Vendble.'^^  I  know  the  constitution  does  not  contain  the  word  slave 
— but  it  admits  the  thing  and  protects  it — and  Congress  have  uniformly 
acted  accordingly. 

The  question  for  striking  out  was  lost,  yeas  13,  nays  15.* 

43  Abraham  B.  Venable,  senator  from  Virginia. 

*  It  is  obvious  that  the  zeal  displayed  by  the  Senators  from  the  Slave 
States,  to  prohibit  the  foreign  importation  of  Slaves  into  Louisiana,  pro- 
ceeds from  the  motive  to  raise  the  price  of  their  own  slaves  in  the  market — 
and  to  encrease  the  means  of  dispersing  of  those  who  are  most  turbulent  and 
dangerous  to  them. 


Appendix  225 


1804,  Wednesday,  Fehy.  1. 

Bill  for  the  Government  of  Louisiana 

It  was  moved  by  Mr.  Hillhouse  to  amend  it  by  adding  the  following, — 

'^And  no  slave  or  slaves  shall  directly  or  indirectly  be  introduced  into 
the  said  territory,  except  by  a  citizen  of  the  United  States,^^  removing  into 
said  territory,  for  actual  settlement,  and  being  at  the  time  of  such  removal 
Jjona  fide  owner  of  such  slave  or  slaves;  and  every  slave  imported  or  brought 
into  the  said  territory,  contrary  to  the  provisions  of  this  act,  shall  thereupon 
be  enttled  to,  and  receive  his  or  her  freedom, '^    . 

Mr.  Jackson.  I  move  to  postpone  the  further  consideration  of  this 
amendment  to  September. 

Mr.  HillJioiise.  This  being  an  amendment  to  a  bill  it  cannot  be  post- 
poned unless  the  bill  is  postponed  with  it. 

The  President. 'i:^     The  motion  is  not  in  order — it  cannot  be  reed. 

Mr.  Wright.'^Q  The  owners  of  land  in  that  country  who  do  not  live 
there  ought  to  have  liberty  of  sending  their  slaves  to  cultivate  their  own 
land  but  not  to  sell  their  slaves  there. 

It  is  wrong  to  reproach  us  with  the  immorality  of  slavery — that  is  a 
crime  we  must  answer  at  the  bar  of  God — ^we  ought  not  therefore  to 
answer  it  here — for  it  would  be  unjust  that  we  should  be  punished  twice  for 
the  same  offence. 

I  am  against  admitting  foreign  slaves,  because  the  State  of  Maryland 
has  declared  it  wrong.'^'^ 

Mr.  Jackson.  This  amendment  does  not  authorize  foreigners  who  may 
go  to  settle  in  that  country  to  carry  their  slaves  with  them,  I  am  therefore 
on  this  ground  opposed  to  the  amendment.  The  great  object  we  should  have 
in  view  should  be  the  settlement  of  that  country.  Our  interest  is  to  admit 
Englishmen  there  as  soon  and  as  fast  as  possible. 

Mr.  Hillhouse.  I  hope  foreigners  will  not  be  permitted  to  settle  in  that 
distant  country.  It  is  seldom,  that  any  but  the  worst  of  men  leave  their 
own  to  settle  in  a  foreign  country. 

Mr.  Ja^Tcson.  I  am  not  afraid  of  such  evils.  The  friends  of  liberty 
only  will  come — let  us  encourage  the  settlement  of  that  country  as  much 


44  The  words  which  Plumer  has  underlined  are  the  new  matter,  substi- 
tuted for  ' '  person  or  persons, "  as  is  shown  by  the  amendments  in  the  Senate 
files,  as  well  as  by  the  Journal. 

45  On  January  23,  Vice-president  Burr  being  absent  on  account  of  illness. 
Senator  John  Brown  of  Kentucky  had  been  chosen  president  of  the  Senate 
pro  tempore. 

46  Robert  Wright,  senator  from  Maryland. 

47  Maryland  act  of  1796,  c.  67. 


226       Constitutiomil  History  of  the  Louisiana  Purchase 

as  possible.  It  is  dangerous  to  exclude  foreigners.  The  very  best  of  men 
will  flee  from  Europe — for  liberty  exists  only  in  this  country.  Bad  men 
*  are  afraid  to  come  here — they  are  encouraged  to  stay  at  home.  /  trv^t  the 
present  Congress  are  not  apprehensive  of  having  too  nmny  Jacobins  in  this 
country.  The  government  and  the  Congress  were  five  years  ago  afraid  of 
Jacobins — I  hope  we  are  not  like  them. 

Mr.  Pickering.  I  am  very  willing  that  foreigners  should  be  admitted  to 
settle  in  that  country — for  I  believe  before  we  purchased  that  we  had 
territory  in  the  United  States  sufficient  for  ibs  and  our  posterity  to  the 
thousandth  generation.  I  am  willing  that  in  Louisiana  oppressed  humanity 
should  find  an  assylum,  and  that  the  patriots  of  no  country  should  there 
find  a  country  in  which  no  restraints  should  be  imposed  upon  them. 

It  was  then  moved  to  strike  out  of  the  amendment  the  words  citizen  of 
the  United  States  and  insert  person. 

The  motion  was  lost  yeas  13  nays  14.48 

The  question  was  then  carried  on  the  amendment,  yeas  18,  nays  11. 
Mr.  JacTcson.  If  you  establish  a  regular  government  there,  you  will 
destroy  the  western  States,  by  the  strong  inducements  you  will  hold  out  to 
people  to  settle  Louisiana.  The  cession  will  prove  a  curse — why  invite 
people  to  settle  it  now — it  is  too  soon — 50  or  100  years  hence  will  be  soon 
enough.  By  exposing  these  immense  tracts  of  uncultivated  lands  to  sale 
you  will  encourage  bribery.  I  was  offered  half  a  million  of  acres  to  hold 
my  tongue  in  the  Georgia  speculation.  I  had  mrtue  to  resist  the  tempta- 
tion.49 

The  settlement  of  Louisiana  will  destroy  the  value  of  our  lands.  It 
will  effect  what  I  very  much  deprecate,  a  separation  of  this  Union. 

How  great,  how  powerful,  was  Spain  before  she  acquired  South  America. 
Her  wealth  has  debased  and  enervated  her  strength.  If  you  establish  a 
regular  government  in  Louisiana,  that  will  be  settled — you  cannot  then 
prevent  it — and  if  settled,  such  is  the  enterprizing  spirit  and  avaricious 
disposition  of  Americans  that  they  will  then  soon  conquer  South  America, 
and  the  rich  mines  of  that  country  will  prove  our  ruin.  A  military  govern- 
ment ought  to  be  established  in  upper  Louisiana — that  would  prevent  set- 
tlement. I  would  pay  those  Americans  who  are  now  there  for  their  lands 
if  they  would  quit  them. 

Mr.  CocTce.  1  am  glad  Georgia  has  one  uncorrupt  man,  and  I  rejoice 
that  he  is  a  senator.  I  trust  we  have  many  such  in  the  nation.  I  am  ready 
to  vote.     The  debate  on  this  bill  has  been  so  long  that  I  have  already  lost 


48  This  motion  does  not  appear  in  the  Journal. 

49  In  1796  Jackson  was  the  leader  of  the  ''Anti-Yazoo  Party"  in  the 
Georgia  House  of  Kepresentatives,  having  resigned  his  seat  in  the  United 
States  Senate  in  order  to  conduct  the  contest. 


Appendix  227 

the  benefit  of  much  of  it,  for  I  have  really  forgotten  it.  I  can  throw  no 
new  light.  I  call  for  the  question.  We  must  give  that  people  a  rational 
government. 

Mr.  Worthington.  The  government  contemplated  by  this  bill  is  a 
military  despotism,  and  I  am  surprised  that  it  finds  an  advocate  in  this 
enlightened  Senate.  The  gentleman  from  Georgia  (Mr.  Jackson)  talks  of 
a  separation — Sir,  the  western  states  will  not  separate  unless  the  eastern 
States  by  their  conduct  render  it  absolutely  necessary. 


1804,  Thursday,  Fehy.  2nd. 

Government  of  Louisiana.    Motion   to  Strike  Out  the  8th   Section 

OF  THE  BlLL.50 

Mr.  Hillhouse.  I  am  against  the  establishment  of  an  arbitrary  gov- 
ernment in  that  country.  It  has  been  said  it  is  best  to  establish  such  a 
government  in  that  country  as  will  prevent  its  settlement.  I  wish  gentle- 
men to  consider,  that  by  the  treaty  the  rights  of  the  inhabitants  of  that 
country  are  guaranteed  to  them.  Look  at  documents  now  on  your  tables,  by 
them  it  appears  that  much  of  those  vacant  or  uncultivated  lands  are  granted 
to  Spaniards.  And  you  must  give  to  them  such  a  government  as  they  can 
live  under,  or  you  will  not  protect  them  in  the  enjoyment  of  their  rights  as 
you  have  by  your  treaty  stipulated.  You  must  give  that  people  a  practical 
government — not  like  our  own,  for  they  are  unacquainted  with  it — a  military 
government  would  be  too  arbitrary.  I  would  not  give  them  a  trial  by  jury, 
because  they  are  not  used  to  it — but  I  would  give  them  the  liberty  of  having 
trials  by  jury  whenever  they  are  able  to  express  their  desire  of  it  by 
their  own  legis[la]ture  and  to  make  laws  regulating  that  mode  of  trial. 

Mr.  John  Smith.  The  establishment  of  a  military  government  is  at  war 
with  the  third  article  of  the  treaty — with  the  letter  and  spirit  of  your  con- 
stitution— which  knows  no  other  government  than  that  of  republicanism. 
That  country  is  now  ours — and  it  will  be  utterly  impossible,  by  any  law 
you  can  pass,  to  prevent  people  from  emigrating  to  and  settling  in  that 
country.  Eeference  is  frequently  made  to  the  documents  that  the  President 
has  sent  us  respecting  that  country.  Those  documents  are  incorrect.  I  know 
of  three  large  settlements  in  that  country  that  are  not  even  named  in  these 
papers.     We  know  but  little  of  that  Country. 


50  The  eight  section  of  the  original  bill,  with  slight  modifications,  is 
quoted  in  the  Journal,  III,  349.  It  relates  to  the  government  of  the  portion 
of  the  Louisiana  cession  north  of  the  territory  of  Orleans,  and  provides  for 
rule  by  a  governor  having  the  executive  and  judicial  powers  (''paramount 
powers"  in  the  original  bill)  exercised  by  the  former  governors  of  the 
province. 


228       Constitutional  History  of  the  Louisiana  Purchase 

Mr.  Coclce.  Give  that  country  a  Jury.  I  knoAv  we  can  prevent  its 
settlement.  I  would  not  give  them  a  good  government.  I  prefer  a  had  one 
to  a  good  one  for  them — because  a  bad  one  will  make  them  contented,  they 
have  been  used  to  it.  The  only  way  to  govern  that  country  safely  is  to 
govern  it  justly.  Let  them  have  their  old  laws  and  ancient  customs,  except 
a  trial  by  jury  and  that  they  should  Jiave.  Too  much  wisdom  is  painful — 
it  conjures  up  too  many  evils.  I  fear  we  are  too  wise  to  do  good.  Our 
way  is  plain,  it  is  the  old  way — but  I  am  really  afraid  we  are  fond  of 
projects — novelties.  Our  fears  are  chimerical.  We  should  be  bold  and 
resolute.  Tell  that  people  you  shall  have  justice,  but  you  shall  obey  the 
laws.  I  have  taken  up  much  of  your  time,  but  coming  from  the  westward, 
I  have  frequently  been  urged  to  tell  my  opinion — no  arbitrary — no  military 
government  will  do — we  must  give  them  a  free  government.  We  talk  too 
much  of  the  ignorance  of  that  people  they  know  more  than  what  you  think 
they  do — they  are  not  so  plagay  ignorant. 

Mr.  Jackson.  Eome  flourished  while  she  confined  herself  within  proper 
bounds — but  she  extended  her  limits  too  far — when  she  gratified  her 
insatiable  thirst  for  lands — the  northern  hordes  overwhelmed  and  destroyed 
her.  I  fear  this  will  be  our  case  in  the  gouth..  I  never  wish  to  see  our  people 
go  beyond  the  Mississippi.  We  ought  not  to  give  them  such  a  government 
as  mil  afford  them  protection  in  their  settlements.  If  you  permit  the  settle- 
ment of  that  country,  you  will  depreciate  the  value  of  your  public  lands 
and  destroy  the  western  states.  I  know  the  President  approves  of  this 
eight  [h]  section. 

Mr.  Anderson.  This  8th.  section  is  a  military  despotism — its  unconsti- 
titional — its  opposed  to  the  spirit  and  genius  of  our  constitution.  The  only 
power  we  have  to  legislate  for  that  country  is  derived  from  the  constitution 
— and  we  must  give  them  a  republican  government — we  can  give  them  no 
other. 

There  never  existed  on  earth  a  free  Eepubliean  Government  untill  the 
present  government  of  the  United  States. 

This  section  establishes  the  former  laws  and  government  of  Spain  in  that 
Country — and  what  those  are  we  know  not. 

I  know  the  settlement  of  Louisiana  will  materially  injure  Tennessee — it 
will  injure  all  the  western  states — still  we  must  give  them  a  constitutional 
government.  I  am  for  preventing  the  settlement  of  that  country  by  law, 
and  I  think  our  laws  may  be  executed. 

There  is  now  about  8000  inhabitants  in  upper  Louisiana — more  than 
two  thirds  of  them  are  Americans — most  of  them  have  emigrated  from 
Virginia.     They  understand  and  will  demand  their  rights. 

If  the  President  of  the  United  States  now  approves  of  this  8th  section — 
9,nd  should  it  be  adopted,  I  will  venture  to  say  he  will  soon  have  cause  to 
repent  of  it. 


Appendix  229 

Mr.  Dayton.  I  ask  the  gentleman  (Mr.  Anderson)  where,  and  in  what 
part  of  the  Constitution  does  he  find  any  authority  to  legislate  for  that 
Country.  The  constitution  gives  us  no  authority  on  the  subject.  We  derive 
our  power  and  right  from  the  nature  of  government.  That  Country  is  a 
purchased  territory  and  we  may  govern  it  as  a  conquered  one. 

A  military  government  is  the  best  and  the  only  government  you  can 
prudently  and  safely  establish  in  Upper  Louisiana.  A  strong  efficient  gov- 
ernment is  essential.  I  hope  we  shall  prevent  the  settlement  of  Upper 
Louisiana,  not  only  for  the  present,  but  forever.  If  that  country  is  settled, 
the  people  will  separate  from  us — they  will  form  a  new  empire — and  become 
our  enemies. 

I  believe  we  may  induce  the  Indians  on  this  side  to  remove  to  the  other 
side  of  the  Mississippi — and  this  will  be  a  great  and  useful  thing  to  us.si 

This  section  of  the  bill  is  important  and  will  I  hope  be  retained. 

Mr.  Wright.  I  am  in  favor  of  the  section.  The  constitution  requires 
that  the  governments  of  States  should  be  republican,  but  not  so  of  terri- 
torial governments.  The  Territorial  governments  in  this  Country  are  not, 
or  is  it  necessary  they  should  be,  republican — none  of  them  have  the  power 
to  elect  representatives.  To  extend  the  trial  by  jury  to  that  country  would 
be  a  denial  of  Justice — they  live  too  remote  from  each  other  to  derive  any 
benefit  from  it. 

Mr.  Samuel  Smith.  This  8th  section  embraces  a  country  in  which  there 
are  settlements  800  miles  distant  from  each  other.  A  governor  and  three 
Judges  cannot  regular  their  affairs.  This  section  of  the  bill  is  in  principle 
republican — we  ourserves  are  their  Legislators  and  the  Commandants  are 
only  our  agents. 

Mr.  Pickering.  I  think  we  are  in  an  error  in  applying  the  Constitution 
to  that  country — it  does  not  extend  there.  But  we  are  bound  by  the  treaty 
to  extend  protection  to  the  people  of  that  country,  and  secure  to  them  their 
rights  and  priveledges.     We  must  consider  and  govern  them  as  a  colony. 

Laws  will  never  be  sufficient  to  prevent  the  settlement  of  that  country. 
If  people  find  their  interest  in  settling  it,  your  prohibitions  will  prove 
unavailing. 

Mr.  Braclcenridge.  I  do  not  feel  any  constitutional  difficulty  as  to  the 
form  of  government.  I  am  for  giving  them  such  a  system  as  to  me  appears 
best.  The  provisions  contained  in  this  8th  section  are  arbitary.  There  is 
no  legislative  authority  given  to  that  people.     I  am  opposed  to  the  section. 

Mr.  Nicholas.  I  am  glad  the  section  gives  no  legislative  authority — that 
country  needs  none.  I  am  inimical  to  change.  Do  as  little  for  that  people 
as  possible.    Let  them  have  and  enjoy  their  old  laws  and  customs. 

51  See  Miss  Abel  in  Annual  Report  of  the  American  Historical  Associa- 
tion for  1906,  I,  241-249.  Sec.  9  of  the  original  bill  in  Breckinridge's 
manuscript  provides  for  exchange  of  land  by  Indian  tribes. 


230       Constitutimial  History  of  the  Louisiana  Purchase 

Mr.  Wright.  I  would  have  such  a  despotic  government  in  the  territory 
of  Upper  Louisiana  as  should  absolutely  prevent  people  from  settling  it.  I 
would  remove  those  who  are  now  settled  there,  if  I  could — but  at  all  events 
I  would  let  no  more  go  there. 

Mr.  Cocke.  I  will  always  give  a  good  government  when  I  can.  I  will 
not  do  evil  meerly  because  I  have  the  power  of  doing  so.     The  question. 

The  question  was  then  taken  and  the  8th  section  was  struck  out — yeas 
16,  nays  9. 

See  Journal  of  Senate,  p.  174.^^ 

1804,  Friday,  Fehy.  3d. 
The  Bill  for  the  Government  of  Louisiana  Under  Consideration'^^ 

Mr.  Jackson.  I  have  high  authority  for  saying  it  is  the  intention  of 
our  government  to  take  effectual  measures  to  induce  all  the  Indians  on  this 
side  of  the  Mississippi  to  exchange  their  lands  for  lands  in  upper  Louis- 
iana. 54  I  think  it  a  prudent  and  practicable  measure — and  that  is  one  reason 
why  I  wish  to  prevent  the  establishment  of  a  civil  government  in  that  terri- 
tory. In  the  name  of  God  have  we  not  land  enough  for  a  settlement  without 
this!  I  would  buy  up  the  title  of  those  who  have  already  gone  there.  The 
Indians  would  have  gone  there  before  this  had  not  the  Spaniards  have  pre- 
vented them.  The  Indian  wars  have  cost  us  millions  of  dollars — and  much 
blood.  They  are  bad  dangerous  neighbors.  There  are  already  many  Indians 
there — if  you  establish  a  civil  government — if  you  permit  settlers — you  will 
find  the  expense  of  that  government  immense — it  will  render  the  purchase 
a  curse. 

Mr.  Warthington.  The  Indiana  Territory  is  as  good  soil  and  situation 
as  Upper  Louisiana.  There  have  been  settlers  in  the  former  for  100  years, 
and  a  civil  government  established  for  sometime — that  government  has  not 
encreased  settlers — and  in  all  the  Indiana  Territory  there  are  not  now 
more  7000  souls. 

Mr.  Nicholas.  I  hope  the  •  Upper  Louisiana  will  not  for  many,  very 
many  years,  be  admitted  as  a  State  or  States — New  Orleans,  perhaps  must 
soon  be  admitted  as  such. 

Mr.  Jackson.     I  move  to  annex  Upper  Louisiana  to  the  Indiana  Territory. 

Mr.  Brackenridge.     I  have  little  objections  to  this. 

52  Page  174  of  the  original  edition;  page  349  of  vol.  Ill  of  the  reprint 
of  1821. 

53  Debate  was  apparently  on  an  amendment  not  mentioned  in  the  Journal 
but  preserved  in  manuscript  in  the  Senate  files,  giving  Upper  Louisiana  a 
territorial  government  of  the  simplest  form,  with  its  own  governor,  secretary, 
and  judges,  and  with  legislative  power  vested  in  the  governor  and  judges. 
This  amendment  is  endorsed  "Breckinridge." 

54  For  Jefferson 's  course  in  this  matter  see  Miss  Abel,  loc.  cit. 


Appendix  231 

Mr.  Hillhouse.  The  government,  laws,  customs,  manners  and  habits  of 
the  two  countries  are  in  direct  opposition  to  each  other.  The  regulations  of 
the  one  cannot  be  established  in  the  other.  You  cannot  immediately  effect 
such  a  change. 

Mr.  Saml.  SmitJi.  I  approve  of  the  measure.  It  will  lessen  the  number 
of  offices  and  of  course  expence.  I  know  it  will  estop  slavery  there,  and  to 
that  I  agree. 

Mr.  Wright.  This  is  a  new  proposition,  but  I  am  in  favor  of  it — it 
will  lessen  expence.  I  Avould  unite  the  two  territories  governmentally  but 
not  territorially. 

Mr.  Hillhouse.  Both  of  those  Countries  have  separate  rights,  and  by 
this  regulation  you  will  impair  them  both.  The  ordinance  establishing  the 
Indiana  Territory  created  certain  rights  which  are  vested  in  the  inhabitants 
of  that  territory.  The  people  in  Louisiana  have  their  rights  and  we  have 
by  treaty  guaranteed  to  them  the  enjoyment  of  those  rights.  If  these  terri- 
tories are  united  who  will  legislate  for  them — must  they  be  governed  by 
different  laws.  This  union  will  make  one  of  the  territories  a  mere  colony 
to  the  other. 

Mr.  Wright.     They  must  be  governed  by  different  laws. 

Mr.  John  Smith.  I  cannot  wholly  approve  of  the  motion.  I  think  there 
is  weight  in  the  argument  of  the  gentleman  from  Connecticut  (Mr.  Hill- 
house).  But  I  will  accord  with  the  majority.  I  should  be  better  pleased 
if  a  part  of  Upper  Louisiana  was  annexed  to  the  Mississippi  Territory. 

Mr.  V enable.  I  approve  of  the  principle,  but  wish  it  modified.  It  is  not 
yet  settled  that  Louisiana  is  a  part  of  the  United  States.  I  would  not 
therefore  annex  the  two  territories  together;  but  I  would  extend  the  author- 
ity of  the  government  of  the  Indiana  territory  to  the  territory  of  Upper 
Louisiana. 

1804,  Tuesdmj,  Feby.  7th 

The  Bill  for  the  Government  of  Louisiana 

The  debate  on  this  bill  was  principally  confined  to  the  question  whether 
people  of  colour  should  be  necessarily  disqualified  and  excluded  from 
serving  on  juries.  Excluded.  Democrats  in  general  voted  in  favor  of 
exclusion. 

1804,  Wednesday,  Feby.  8th. 

Same  Bill 

The  amendment  to  annex  the  upper  Territory  of  Louisiana  to  Indiana, 
was  withdrawn.  Mr.  Nicholas  offered  an  amendment  authorizing  the 
officers  of  the  Indiana  Territory  to  govern  the  Upper  District  of  Louisiana 


232       Constitutional  History  of  the  Louisiurm  Purchase    ■ 

• — and  establishing  the  existing  laws  of  Louisiana  in  that  distriet.ss  Adopted. 
Act  as  amended  ordered  to  be  printed. 

The  democratic  senators  held  a  Caucus  last  evening  in  which  they  settled 
the  principles  of  the  bill — and  agreed  to  the  same  in  the  Senate  without  any 
debate.56 

1804,  Thursday,  Fehy.  16. 

Louisiana  Bill.     Salaries  to  the  Officers 

Governor  Orleans 

Mr.  Jackson,  Mr.  Dayton  )   reasoned  in  favor  of  $8000  pr 

Mr.   Saml  Smith  and  Mr.  Logansvf   annum — 7  only  voted  for  it. 

Mr.  Brackenridge  and  John  Smith  for  $6000.    12  voted  for  it. 

Mr.  Olcott,58  Franklin  and  Cocke  for  $5000.     18  voted  for  it— carried. 

The  salary  to  the  Secretary $2000 

Three  Judges  each 2000 

District  Judge 2000 

Attorney  600 

Marshall 200 

The  members  of  the  Legislative  Council  each  to  have  four  dollars  per 
diem  while  attending  the  Council. 

In  the  course  of  this  debate,  Jackson  and  Samuel  Smith  observed  ' '  That 
the  people  must  be  governed  more  by  pomp,  parade  and  shew  than  by  reason 
— that  splendid  retinues  and  armed  men  are  more  convincing  than  arguments. 

1804,  Friday,  Fehy.  17. 

Louisiana  Bill 

Mr.  Stoiie.^^  There  are  near  900,000  slaves  in  the  U.S.  and  they  are 
worth  $200,000,000.  Slaves  are  property.  The  rights  of  property  are  by 
the  Constitution  guaranteed  and  why  should  the  holders  of  this  kind  of 
property  be  prohibited  from  sending  and  selling  their  slaves  in  Louisiana? 

Mr.  McClay.  That  country  was  purchased  to  serve  as  an  outlet  for  the 
U.S. — to  admit  slaves  there  will  defeat  that  object. 

Mr.  Jackson.  -It  has  been  proposed  to  prohibit  South  Carolina  from 
sending  slaves  into  Louisiana,  because  she  imports  slaves  from  Africa.     She 

iio  This  amendment,  in  manuscript,  is  in  the  Senate  files,  and  also  appears 
in  the  bill  as  amended  (and  in  the  statute)  as  sec.  12. 

56  Some  amendments  offered  on  subsequent  days  appear  in  the  Journal, 
but  Plumer  records  no  debates  respecting  them. 

57  George  Logan,  senator  from  Pennsylvania. 

58  Simeon  Olcott,  senator  from  New  Hampshire. 

59  David  Stone,  senator  from  North  Carolina. 


Appendix  233 

has  a  right  to  do  it.  If  you  pass  this  prohibition  you  will  offend  that  State 
— and  I  will  venture  to  say  very  serious  consequences  will  follow.  I  will 
speak  plain — offend  her  and  she  will  reject  the  amendment  to  the  Constitu- 
tion— and  if  she  rejects  it,  it  will  never  be  ratified. 

Some  people  laugh  at  the  provision  that  the  bill  contains  authorizing  the 
Presidint  to  make  an  exchange  of  lands  in  Louisiana  with  the  Indians  for 
their  lands  on  this  side  of  the  Mississippi.  Let  me  tell  such,  That  this  is  a 
favorite  measure  of  the  President's — he  has  assured  me  so.  He  has,  this 
week,  informed  me  that  sixteen  of  the  Cherokee  Chiefs  have  already  agreed 
to  pass  over  to  Louisiana  and  relinquish  their  lands  on  this  side  of  the 
Mississippi. 


1804,  Saturday,  Fehy.  18. 

Bill  for  the  Government  of  Louisiana 

Mr.  Adams.  This  bill  is  to  establish  a  form  of  government  for  the 
extensive  country  of  Louisiana.  I  have  from  the  beginning  been  opposed 
to  it — and  I  still  am.  It  is  forming  a  government  for  that  people  without 
their  consent  and  against  their  will. 

All  power  in  a  republican  government  is  derived  from  the  people.  We 
sit  here  under  their  authority. 

The  people  of  that  country  have  given  no  power  or  authority  to  us  to 
legislate  for  them.  The  people  of  the  United  States  could  give  us  none, 
because  they  had  none  themselves.  The  treaty  has  given  us  none,  for  they 
were  not  parties  to  it — it  was  made  without  their  knowledge.  To  pass  this 
bill  is  an  encroachment  on  their  rights — its  a  commencement  of  assumed 
power — its  establishing  a  precedent  for  after  Congresses  destructive  of  the 
essential  principles  of  genuine  liberty. 

The  first  territorial  ordinance  under  the  Confederation  was  made  by  the 
then  Congress  without  any  legal  authority — but  the  Constitution  afterwards 
sanctioned  it. 

This  bill  contains  arbitary  principles — principles  repugnant  to  our  Con- 
stitution. The  legislative  Council  are  to  be  appointed  by  the  Governor,  who 
is  a  creature  of  the  President 's — not  elected  by  the  people. 

The  judges  are  to  legislate — make  laws  and  expound  them — this  is  of  the 
essence  of  tyranny. 

In  the  other  territorial  governments,  even  in  the  departure  from  liberty, 
there  is  a  reverence  for  it — for  it  provides  that  when  its  inhabitants  are 
encreased  to  a  certain  number  they  shall  elect  a  representative. 

This  bill  provides  that  the  officers  shall  be  appointed  by  the  President 
alone  in  the  recess  of  the  Senate — why  this  departure  from  the  Constitution. 


234       Constitutional  History  of  the  Louisiana  Purchase 

The  Judicial  officers  are  to  be  appointed  for  a  term  of  years  only,  and 
^yet  the  bill  is  not  limited.  The  constitutional  tenure  for  judicial  officers  is 
during  good  beiiavior. 

The  first  thing  Congress  ought  to  have  done  in  relation  to  that  Country, 
should  have  been  to  propose  an  amendment  to  the  Constitution,  to  the 
several  States  to  authorize  Congress  to  receive  that  Country  into  the  Union 
— we  ought  to  have  applied  to  the  inhabitants  of  Louisiana  to  recognize 
our  right  to  govern  them.  This  we  ought  to  have  done,  and  there  is  no 
doubt  that  the  States  and  that  territory  would  have  given  the  authority 
before  the  next  session. 

The  3d  article  of  the  treaty  pledges  the  faith  of  the  Nation  to  the 
inhabitants  of  that  country  that  we  will  protect  their  persons,  religion 
property  and  rights;  but  we  have  taken  no  measures  to  ascertain  there  num- 
bers, religion  or  rights. 

We  have  not  the  necessary  information  to  pass  a  law  containing  the 
great  fundamental  principles  of  government.  We  know  little  of  that 
people  or  Country.  In  thus  passing  this  bill  we  commit  an  act  of  practical 
tyranny. 

The  bill  contains  incongruous  articles — establishment  of  courts — juries — 
numerous  laws — prohibition  of  slavery  etc.  This  is  a  Colonial  system  of 
government.  It  is  the  first  the  United  States  have  established.  It  is  a  bad 
precedent — the  U.S.  in  time  will  have  many  colonies — precedents  are  there- 
fore important. 

The  governor's  appointing  and  proroguing  the  Council  is  an  act  of 
tyranny. 

Tis  too  soon  to  extend  the  trial  by  jury  to  that  Country.  There  are 
serious  inconveniences  attending  this  mode  of  trial — and  those  people  have 
not  laws,  customs  or  habits  to  correct  those  evils.  Extending  juries  to  them 
in  their  present  condition,  will,  I  fear,  excite  opposition  to  the  institution 
itself.  There  present  mode  of  trial  is  summary — no  jury — a  single  judge 
decides.  Trial  by  jury  and  delay  are  synonymous — by  introducing  it  you 
establish  new  principles.  What  is  meant  by  vicinage  in  that  country?  In 
law  books  it  has  a  definite  and  precise  meaning — it  is  confined  to  a  County. 
There  you  have  no  Counties.  Is  it  to  extend  thro'  the  whole  country.  Will 
it  not  give  too  much  power  to  the  judge — and  will  it  not  be  burthensome 
and  even  oppressive  to  compel  people  from  distant  parts  of  that  extended 
world  (for  such  I  may  call  it)  to  attend  Courts  of  law  as  grand  and  petit 
jurors!  The  District  court  is  to  sit  once  in  three  months,  and  the  Supremo 
Court  once  every  month — the  call  for  jurors  will  therefore  be  frequent. 

The  governor  and  judges  of  the  Indiana  territory  are  to  govern  Louisiana 
— will  they  not  govern  it  in  an  arbitrary  manner — ^will  they  not  consider  it 
as  a  colony  to  them? 

The  bill  passed  yeas  20  nays  5. 


INDEX 


Adams,  John,  defends  Louisiana 
purchase,  34-35. 

Adams,  J.  Q.,  opinion  on  need  of 
constitutional  amendment  for 
Louisiana  purchase,  30-31,  45- 
47,  and  for  fulfilling  engage- 
ments of  Art.  7  of  Louisiana 
treaty,  75;  motion  to  pass 
Breckinridge  bill,  102;  opposi-' 
tion  to  delegate  to  Congress 
from  Louisiana  Territory,  104; 
opinion  on  slavery,  110,  117; 
comments  on  slavery  provisions 
in  Louisiana  government  bill, 
115,  note  27,  117,  121,  note  42; 
interpretation  of  constitution  on 
slavery,  119;  vote  against  Louis- 
iana government  bill  and  reasons 
therefor,   129-131. 

Alston,  W.,  of  North  Carolina,  on 
admission  of  Orleans  Territory 
to  statehood,  179. 

Ames,  F.,  denunciation  of  Louis- 
iana Purchase,  29. 

American  Insurance  Co.  vs.  Canter, 
interpretation  by  Supreme  Court 
of  status  of  territorial  courts, 
130,  note  60,  140,  note  23. 

Anderson,  of  Tennessee,  opinion 
on  government  for  Louisiana, 
107,  on  slavery,  111;  motion 
against  prescribing  a  govern- 
ment for  Upper  Louisiana,  121, 
126,  note  49;  opposition  to  sec- 
tion 8  of  Louisiana  government 
bill,  123;  amendment  to  Louis- 
iana government  bill,   127. 


''Anti- Yazoo  Party,"  121,  note 
43. 

Articles  of  Confederation,  article 
11,  bearing  on  constitutional 
right  to  acquire  territory,  14. 

Bedinger,  of  Kentucky,  support  of 
bill  providing  for  registry  of 
vessels,  132. 

Barry,  of  Kentucky,  on  admission 
of  Orleans  Territory,  179. 

Bibb,  of  Georgia,  on  admission  of 
Orleans  Territory,  179,  180,  186, 
on  division  of  Orleans  Territory, 
181. 

Bore,  E,  de,  resignation  as  mayor 
of  New  Orleans,  149;  report 
against  Claiborne,  154. 

Boyle,  of  Kentucky,  opposed  to 
Breckinridge  bill,  138. 

Bradley,  of  Vermont,  opposition  to 
delegate  to  Congress  from  Louis- 
iana Territory,  103 ;  opinion  on 
slavery,  109,  112,  114,  119,  on 
form  of  government  for  Louis- 
iana, 110,  on  government  of  Dis- 
trict of  Columbia,  110;  opposed 
first  Hillhouse  amendment,  114, 
favored  second  Hillhouse  amend- 
ment, 116. 

Breckinridge,  J.,  opinion  on  limi- 
tation of  area  of  a  republic,  62; 
denial  of  unconstitutionality  of 
Art.  3  of  Louisiana  Treaty,  69, 
70;  cited  on  confining  Americans 
to  east  side  of  Mississippi,  99; 
opinion  on  slavery,  108,  114, 
118-119,  on  annexation  of  Upper 
Louisiana  to  Indiana  Territory, 
126.     See  also  Breckinridge  Bill. 


[235] 


Index 


Breckinridg-e  Bill   (Louisiana  Gov- 
^         ernment  Bill)  \ 

In  the  Senate,  101-131;  Commit- 
tee, 101;  provisions,  101-102; 
debate  on,  102-131;  passage, 
102,  104,  129 ;  amendments  to : 
authorizing  delegate  to  Con- 
gress from  Louisiana,  103- 
105;  authorizing  trial  by  jury 
in  all  criminal  cases,  105 ;  con- 
cerning legislative  rights  and 
procedure,  105-107 ;  concern- 
ing slavery,  107-120,  128-129; 
concerning  government  of  the 
upper  district,  121-125;  con- 
cerning annexation  of  Upper 
Louisiana  to  Indiana,  125- 
127;  concerning  colored  people 
serving  on  juries,  126;  con- 
cerning election  of  represen- 
tatives and  of  legislative  coun- 
cil, 127;  concerning  election  of 
legislative  council,  127;  mo- 
tion regarding  salaries,  128. 

In  the  House,  134—145 ;  debate 
on  section  4  (legislative  pow- 
ers), 135-138;  section  substi- 
tuted, 138-139;  naturalization 
amendment,  131;  provisions  of 
section  4  as  finally  adopted, 
142-143;  debate  on  section  5 
(judicial  procedure),  139-141; 
passage  of  bill,  143;  duration 
of,  143;  suffrage  right  with- 
held, 143. 
Briggs,  Isaac,  155,  note  30. 
British    Treaty    of     1794     (Jay's 

Treaty),  precedents  cited  from, 

5-7,  50,  73,  182. 
Burr  Conspiracy,  167. 
Cabildo,    abolishment    of,    in   New 

Orleans,    92;     establishment    of, 

92,  note  35. 


Cabot,  G.,  opinion  on  Louisiana 
Purchase,  32. 

Calhoun,  John  C,  196;  opinion  on 
Johnson  amendment  to  Louisiana 
Statehood  bill,  192. 

Campbell,  G.  W.,  of  Tennessee, 
support  of  bill  providing  for 
registry  of  vessels,  132;  opinion 
on  form  of  government  for  Louis- 
iana, 137;  submits  substitute  for 
section  4  of  Breckinridge  bill, 
138,  and  amendments  to  section 

.  5,  140-141. 

Canada,  admission  into  the  Union, 
intent  of  framers  of  Constitu- 
tion regarding,  34,  46;  address 
to,  of  October  26,  1774,  155. 

Civil  War,  The,  issues  of,  113. 

Claiborne,  governor  of  Mississippi, 
instructions  from  Gallatin  on 
export  and  import  duties  in 
Louisiana,  40;  appointed  to 
receive  the  ceded  territory,  90. 
Acting  Governor  of  Louisiana, 
92,  151,  152;  opinions  on  gov- 
ernment and  people  of  Louis- 
iana, 91,  93-94,  95;  poAvers  as 
governor,  93,  147-148;  admin- 
istrator of  justice,  95-96,  153 ; 
suggestions  and  recommenda- 
tions, 147-152,  162,  170-171; 
attacks  on  him  as  governor: 
memorial  against,  153,  162; 
report  against,  of  committee, 
154-155;  opinion  on  status  of 
citizenship,  166,  on  suspension 
of  writ  of  habeas  corpus,  167- 
168,  on  statehood  for  Orleans 
Territory,  189,  190;  letter  of 
introduction  to  President  Mon- 
roe   of    bearers    of    Louisiana 


[236] 


Index 


State  Constitiition,  190;  date 
of  assumption  of  duties  as 
governor  of  Louisiana,  195. 

Clark,  D.,  150,  150,  note  11;  co- 
author of  memorial  against  Clai- 
borne, 153. 

Clay,  Henry,  of  Kentucky,  reply 
to  Horsey  on  question  of  con- 
stitutional powers  of  Executive, 
175-17fi;  suggestion  on  West 
Florida  difficulty  in  Louisiana 
statehood   matter,    191. 

Clay,  J.,  of  Pennsylvania,  opinion 
on  naturalization  amendment  to 
Breckinridge  bill,  141. 

Clinton,  of  New  York,  points  out 
danger  of  armed  action  on  part 
of  Executive,  11. 

Cocke,  of  Tennessee,  cited  on  the 
treaty-making  power,  59;  opin- 
ion on  delegate  to  Congress  from 
Louisiana  Territory,  104,  on  for- 
mation of  legislative  council  for 
Louisiana,  107,  on  government 
of  Upper  Louisiana,  122-123. 

Committee  of  Detail,  bearing  of 
report  on  constitutional  right  to 
acquire  territory,  15. 

Committee  of  Five,  bearing  of 
draft  to  a  Constitution  on  right 
to  acquire  territory,  15. 

''Compact  theory,"  69,  161,  177- 
178. 

Constitution  of  the  Confederate 
States,  16,  note  10. 

Constitution  of  the  United  States, 
limitations  of,  1 ;  the  right  under, 
to  acquire  territory,  14r-35;  pro- 
visions of  Art.  4,  Sec.  3,  14;  in- 
terpretations of  other  provisions, 
16-35;   powers  of  Executive  un- 


der, 174r-176;  precedents  under, 
made  in  Louisiana  purchase, 
195-196.  See  also  Articles  of 
Confederation ;  Committee  of 
Detail;  Committee  of  Five;  New 
Jersey  Plan;  Virginia  Plan; 
West  Florida,  etc.,  etc. 

Cooley,  opinion  on  the  Louisiana 
purchase,  2,  note  4;  on  practical 
settlement  of  constitutional 
power,  25,  note  27. 

Court  of  Pleas,  established  in 
Louisiana  Territory,  95;  organ- 
ization and  jurisdiction,  95. 

Crandall,  S.  B.,  49,  note  1. 

Crowninshield,  of  Massachusetts, 
opinion  on  Art.  7  of  Louisiana 
Treaty,  77. 

Cuba,  170. 

Cutler,  M.,  comment  on  purchase 
of  New  Orleans,  9,  note  21 ;  opin- 
ion on  Louisiana  purchase,  33; 
comment  on  Louisiana  govern- 
ment bill,  141,  note  27. 

Dana  of  Connecticut,  cited  on  duty 
of  House  to  ask  information  of 
President,  7,  on  power  of  the 
Executive,  87;  opposed  to  bill 
providing  for  registry  of  ves- 
sels, 132;  revives  partnership- 
compact  theory  in  amendment 
to  West  Florida  bill,  177-178. 

Dayton,  of  New  Jersey,  opinion  on 
delegate  to  Congress  from  Louis- 
iana Territory,  103,  104,  on  slav- 
ery, 108,  110,  113,  on  elective 
government  and  trial  by  jury  for 
Louisiana,  110,  on  third  Hill- 
house  amendment,  116,  on  gov- 
ernment and  settlement  of  Upper 
Louisiana,  123. 


[237] 


Index 


Dayton,  General,  vote  on  the  Louis- 
iana purchase  treaties,  13;  opin- 

V  ion  on  Adams'  motion  to  pass 
Breckinridge   bill,    103. 

Dennis,  of  Maryland,  support  of 
bill  providing  for  registry  of 
vessels,  132. 

Derbigny,  P.,  bearer  of  Louisiana 
memorial  to  Congress,  155,  156, 
161-162. 

Destrehan,  J.  N.,  bearer  of  Louis- 
iana memorial  to  Congress,  155, 
161-162. 

District  of  Louisiana.  See  Upper 
Louisiana. 

District  of  Orleans.  See  Orleans, 
Territory  of. 

Dred  Scott  case,  68,  note  13. 

Easton,  E.,  suggestion  on  form  of 
government  for  Orleans  Terri- 
tory, 162,  on  settlement  on  west 
side  of  Mississippi,  162-163. 

Elliot,  of  Vermont,  opposes  reso- 
lution requesting  documents  from 
President,  50-51;  cited  on  right 
to  acquire  territory,  63;  defense 
of  Art.  7  of  Louisiana  Treaty, 
76,  80 ;  *  opposition  to  grant  of 
power  to  Executive,  86,  88; 
opinion  on  section  4  of  Breckin- 
ridge bill,  136. 

Ely,  of  Massachusetts,  on  boundary 
amendment  to  Orleans  Territory 
statehood  bill,  182. 

England  (Great  Britain),  recip- 
rocity relations  with,  81. 

Eppes,  of  Virginia,  statement  re- 
garding writ  of  habeas  corpus, 
169. 

Eustis,  of  Massachusetts,  cited  on 
bill  granting  power  to  Executive, 
88,  on  Breckinridge  bill,  136. 


^'Fellow-Citizen,"  154. 

Floridas,  negotiations  regarding, 
in  connection  with  Louisiana  pur- 
chase, 3-4,  9-10;  Jefferson's 
opinion  on  settlement  of,  17. 
See  also  Eoss,  of  Pennsylvania; 
West  Florida. 

France,  negotiations  with,  in  re- 
gard to  the  Floridas,  3-4,  17,  in 
regard  to  rights  of  Americans  on 
the  Mississippi,  9-11;  complaint 
of  discrimination  against  her 
ships,  81-83. 

Franklin,  of  North  Carolina,  opin- 
ion on  slavery,  108,  109,  114, 
118;  stand  on  Hillhouse  amend- 
ment, 114. 

Fromentin,  E.,  agent  bearing 
Louisiana  State  Constitution  and 
West  Florida  memorial  to  Presi- 
dent, 190. 

Gallatin,  A.,  interpretation  of  Con- 
stitution, Art.  3,  Sec.  4,  on 
acquisition  of  territory,  20-22, 
29,  note  35;  consideration  of  the 
revenue  problems  of  Louisiana, 
39-41;  opinion  on  withholding 
treaty  from  House  until  ratifica- 
tion by  President  and  Senate, 
49-50. 

Gholson,  of  Virginia,  opinion  on 
admission  of  new  states  to 
Union,  181,  on  Johnson 's  amend- 
ment to  Louisiana  statehood  bill 
and  his  proposed  amendment, 
192-193. 

Giles,  of  Virginia,  presented  memo- 
rial against  Claiborne  to  Senate, 
157;  presented  memorial  for  ad- 
mission of  Orleans  Territory  into 
the  Union,  171. 


[238] 


Index 


Goddarcl,  of  Connecticut,  upholds 
Gr,  Griswold  's  resolution  request- 
ing documents  from  the  i^resi- 
dent,  50. 

Granger,  G.,  162-163. 

Gregg,  of  Pennsylvania,  opposed  to 
section  4  of  Breckinridge  bill, 
135. 

Griffin,  of  Virginia,  objections  to 
Art.  7  of  Louisiana  Treaty,  76. 

Griswold,  G,,  of  NeAv  York,  resolu- 
tion requesting  documents  from 
President,  50-51 ;  cited  on 
treaty-making  poAver,  and  on 
Article  7  of  treaty  of  cession, 
51-52;    75-76. 

Griswold,  R.,  of  Connecticut,  mo- 
tion requesting  documents  on  the 
Louisiana  cession,  4-7;  opinion 
on  constitutional  conditions 
necessary  to  ratification  of  Louis- 
iana Treaty,  53-54;  opposition 
to  incorporation  of  inhabitants 
of  acquired  territory  into  the 
Union,  71-72,  to  granting  Louis- 
iana commercial  privileges,  77, 
to  granting  power  to  Executive, 
86-87;  motion  on  right  of  reg- 
istry of  vessels,  134;  opinion 
on  extension  of  naturalization 
power,  141. 

Habeas  Corpus  writ,  suspension  of, 
167-169;  incorporation  of  in 
state  constitution  of  Orleans 
Territory,   189. 

Hamilton's  plan,  bearing  on  con- 
stitutional right  to  acquire  terri- 
tory, 15. 

Hanseatic  cities,  reciprocity  rela- 
tions with,  81. 


Hastings,  of  Massachusetts,  oppo- 
sition to  bill  providing  for  regis- 
try of  vessels,   132. 

Hillhouse,  of  Connecticut,  opinion 
on  slavery,  109-110,  on  form  of 
government  for  Louisiana,  110, 
on  effect  on  slave  trade  of  sup- 
port of  Louisiana  government 
bill,  112 ;  first  amendment  to  Lou- 
isiana government  bill,  112-113, 
second  amendment,  116,  third 
amendment,  116-120;  voted 
against  Louisiana  government 
bill,  129 ;  opinion  on  annexation 
of  Upper  Louisiana  to  Indiana 
Territory,  126;  amendment  to 
bill  admitting  Orleans  Territory 
to  statehood,  171. 

Holland,  of  North  Carolina,  sup- 
port of  bill  providing  for  regis- 
try of  vessels,  132;  opinion  on 
Breckinridge  bill,  137-138. 

Horsey,  of  Delaware,  statement  of 
issues  in  bill  incorporating  West 
Florida  and  Orleans,  and  extend- 
ing laws  to,  174-175. 

Huger,  D.  E.,  cited  in  debate  on 
Griswold 's  resolution,  6. 

Indian  question,  in  connection  with 
Louisiana  purchase,  39 ;  proposal 
that  Indians  on  east  side  move 
to  west  side  of  Mississippi,  123. 
125,  129,  144;  commercial  inter- 
course with  under  the  treaty,  150- 
151. 

Indiana  Territory,  proposals  of  an- 
nexation to,  of  Upper  Louisiana, 
126-127;  officers  of,  authorized 
to  govern  Upper  District  of 
Louisiana,  127. 


[239] 


Index 


Insular  Cases  (Decisions),  influ- 
ence of  Louisistna  purchase,  40, 

%  &Q,  68,  note  13,  78,  note  37,  110, 
note  23. 

Jackson,  Andrew,  152,  note  19. 

Jackson,  of  Georgia,  opinion  on 
delegate  to  Congress  from  Louis- 
iana Territory,  103-104,  on  slav- 
ery, 107-108,  111,  114,  116-117, 
on  first  Hillhouse  amendment  to 
Louisiana  government  bill,  113, 
114,  on  third  Hillhouse  amend- 
ment, 120;  opposition  to  western 
settlement,  123,  to  civil  govern- 
ment of  Upper  Louisiana,  125; 
motion  to  annex  Upper  Louis- 
iana to  Indian  Territory,  126; 
approval  of  plan  to  have  Indians 
on  west  side  of  Mississippi,  129; 
opinion  on  settlement  of  Louis- 
iana, 145. 

Jackson,  of  Virginia,  opposed  to 
bill  granting  power  to  the  Execu- 
tive, 88;  opinion  on  Adams'  mo- 
tion to  pass  Breckinridge  bill, 
103;  opposed  to  Breckinridge 
bill,  137. 

Jay,  John,  cited  on  treaty-making, 
49,  note  1. 

Jay  Treaty.  See  British  Treaty  of 
1794. 

Jefferson,  T.,  opinion  on  treaty- 
making  power,  7,  note  17;  ap- 
pointment of  Livingstone  and 
Monroe  as  ministers  to  France, 
of  Pinckney  and  Monroe  as  min- 
isters to  Spain,  8-9,  purpose  of 
appointment,  8,  9;  views  on 
American  westward  expansion, 
17,  24;  perplexity  and  final  de- 
cision on  constitutionality  of 
Louisiana   purchase,   23-29;    ac- 

[240 


cused  of  planning  for  more  slave 
states,  32,  note  44;  plan  for  con- 
trol of  Louisiana  Territory  after 
its  acceptance,  37-39,  41 ;  special 
message  to  Congress  on  ratifica- 
tion of  Louisiana  Treaty,  42-43 ; 
intentions  regarding  rights  of  in- 
habitants of  acquired  territory, 
66-67;  plans  for  government  of, 
84,  90,  91-92,  97-99;  hope  for 
early  permanent  government  in 
Louisiana,  143-144;  decision  as 
to  judicial  powers  of  governor 
of  Louisiana,  147-148;  opinion 
as  to  the  laws  that  should  pre- 
vail in  Louisiana,  151;  concern 
for  defense  of  Louisiana,  ]6o- 
164,  165;  appoints  Wilkiuso-i 
military  governor  of  Upper 
Louisiana,  165-166. 

Johnson,  of  Kentucky,  on  admis- 
sion of  Orleans  Territory,  182; 
amendment  regarding  annexa- 
tion of  West  Florida  to  Orleans 
Territory,    191. 

Jones,  E.,  co-author  of  memorial 
against  Claiborne,  153. 

Key,  of  Maryland,  on  Orleans  Ter- 
ritory statehood  bill,   186. 

King,  R.,  raises  question  as  to  ad- 
mission of  new  states,  43. 

''Laelius, "  defender  of  Claiborne, 
154-155. 

LaFayette,  considered  for  governor 
of  Louisiana,  152,  and  note  20. 

Laussat,  representative  of  French 
Government  at  transfer  of  Louis- 
iana, 92. 

Leib,  of  Pennsylvania,  opposed  to 
section  4  of  Breckinridge  bill, 
135;  motion  to  extend  Natural- 
ization Act,  141. 

] 


Index 


Leonard,  D.  A.,  cited  on  Louisiana 
purchase,  37,  note  3,  62,  note  2. 

Lewis,  J.,  of  Virginia,  opinion  on 
effect  of  carrying  out  Art.  7  of 
Louisiana  Treaty,  76. 

Lincoln,  L.,  Attorney  General, 
scheme  to  avert  opposition  to 
purchase  of  Floridas  and  New 
Orleans,  18;  decision  on  judicial 
authority  of  governor  of  a  ter- 
ritory, 147-148. 

Lincoln,  President,  169. 

Livingston,  E,,  opinion  on  govern- 
ment of  Louisiana,  149-150,  150, 
note  10;  author  of  memorial 
against  Claiborne,  153,  and  note 

'  25. 

Livingston,  K.,  appointed  as  min- 
ister plenipotentiary  to  France, 
9;  statement  of  position  of 
United  States  as  to  acquisition 
of  foreign  territory,  33. 

Lodge,  H.  C,  opinion  on  Jeffer- 
son 's  Louisiana  purchase,  32, 
note,  44. 

Louisiana,  size,  1;  advantages  of 
purchase  of,  2;  effect  of  pur- 
chase upon  Constitution,  2,  3, 
upon  later  American  history,  2; 
events  leading  to  purchase,  3-13, 
consummation  of,  13,  17;  recep- 
tion of  treaty  in  Congress,  13; 
ratification  of  treaty,  22-29,  39, 
40,  41-43 ;  Senate  vote  providing 
payment  for,  60;  State  of,  77, 
80;  division  into  two  parts,  98. 
See  also  Breckinridge  Bill;  Lou- 
isiana Purchase;  Orleans  Terri- 
tory, etc.,  etc. 

Louisiana,  District  of.  See  Upper 
Louisiana. 

Louisiana,  Upper.  See  Upper  Lou- 
isiana. 


Louisiana    Government    Bill.      See 
Breckinridge    Bill. 

Louisiana  Purchase,  constitutional 
points  raised: 
Ilelations  of  branches  of  Govern- 
ment to  one  another,  and  in- 
terpretation and  extent  of 
power  of  Executive,  7-8,  42, 
note  14,  85-89 ;  right  of  House 
of  Kepresentatives  to  demand 
information  of  Executive,  4-7, 
to  share  in  treaty-making,  6, 
43 ;  danger  of  armed  action 
on  part  of  Executive,  11 ;  his 
power  to  admit  new  states  by 
treaty,  and  power  of  Congress 
to  attach  conditions  to  such 
treaties,  43-44;  power  of  Con- 
gress over  territories,  42,  141. 

The  treaty -making  power,  43,  44, 
49-61,  63,  64,  79,  133,  185- 
186. 

Eight  to  acquire  territory,  14- 
35,  62-65;  various  proposals 
based  on:  Constitution,  Art.  4, 
Sec.  3,  14,  Articles  of  Con- 
federation, Art.  11,  14,  Ran- 
dolph's '  ^  Propositions  "  (Vir- 
ginia Plan),  14-15,  Patter- 
son's proposals  (New  Jersey 
Plan),  15,  Hamilton's  plan, 
15,  the  Charles  Pinckney  draft, 
15,  report  of  the  Committee  of 
Detail,  15,  draft  of  Committee 
of  Five,  15-16,  other  provis- 
ions of  the  Constitution,  16, 
the  generally  accepted  ground, 
16;  Attorney  General  Lincoln's 
scheme,  18-20,  and  Gallatin's 
reply,  20-22;  Jefferson's  per- 
plexity and  final  decision,  23- 
29 ;  miscellaneous  opinions,  29- 


[241] 


Index 


35;  declaration  of  Chief  Jus- 
tice Marshall,  35;  doctriue  of 
limitation  of  area  of  a  repub- 
lic, 62;  bearing  on,  of  the  law 
of  nations,  63;  historical  basis 
for,  63-64. 
Status  of  acquired  territory,  36- 
48,  65-74;  relation  of  Louis- 
iana to  rest  of  United  States, 
36-37;  plan  of  ' '  Sylvestris, " 
37;  plan  of  federal  compact 
for  Louisiana,  37;  Jefferson's 
plan,  37-39,  41;  revenue  prob- 
lems, 39-41;  power  of  Con- 
gress over  territories,  42;  tax- 
ation of  inhabitants,  45 ;  con- 
sent of  people  of  United 
States  and  Louisiana  neces- 
sary to  make  Louisiana  part 
of  American  Union,  46;  inter- 
pretation of  Art.  3  of  Louis- 
iana Treaty,  65-66 ;  rights  and 
privileges  of  inhabitants,  66- 
74,  122,  132-133,  138,  139- 
140;  status  of  inhabitants,  96, 
103,  107,  151;  the  ''compact 
theory,"  69,  161. 

Government  of  acquired  terri- 
tory, temporary,  84-100,  per- 
manent, 101-107;  Jefferson's 
message,  84,  91-92,  and  action 
of  Congress,  84-85;  discus- 
sion of  extent  of  Executive's 
power,  85-89;  passage  of  bill 
authorizing  temporary  govern- 
ment by  Executive,  89,  and  of 
act  making  effective  laws  of 
the  United  States,  89;  Paine 's 
suggestion  as  to  form  of  gov- 
ernm'tot,  90-91 ;  Claiborne, 
acting  governor,  92;  causes  of 
friction,  93,  95,  96;  establish- 


ment of  Court  of  Pleas,  95; 
plans  for  permanent  govern- 
ment, 97-100;  obligations  un- 
der the  treaty,  113,  114,  122, 
132;  right  of  trial  by  jury, 
122;   registry  of  vessels,  132- 

133,  148,  memorial  regarding, 
to   House    of   Representatives, 

134,  Senate  bill,  134-135. 
Commercial  privileges,  port  pref- 
erence, 74-83;  distinction  be- 
tween state  and  territory,  75, 
77,  79,  80;  controversy  regard- 
ing, with  France,  81-83. 

States  and  territories,  distinction 
between,  124;  extension  of 
Constitution  to  territories,  124- 
125;  extent  of  power  of  Con- 
gress to  legislate  for  terri- 
tories, 141. 

Problems  of  territorial  govern- 
ment, 147-169;  discontent  of 
inhabitants,  147,  148-149, 163; 
question  of  final  authority  in 
judicial  matters,  147-148 ;  per- 
sonnel of  legislative  council, 
148;  interpretation  of  Art.  3 
of  treaty,  150,  153,  158;  de- 
fense of  colony,  163-164; 
union  of  civil  and  military  au- 
thority in  Upper  Louisiana, 
165-166;  questions  of  juris- 
diction (status  of  citizenship, 
etc.),  166-167,  of  suspension 
of  writ  of  habeas  corpus,  167- 
169. 

Summary  of  constitutional  prece- 
dents made,  195;  their  signifi- 
cance and  importance,  110, 
note  23,  196. 

Louisiana  Statehood  Bill,  178-194. 
See   also   Orleans,   Territory   of. 


[242] 


Index 


Lucas,  of  Pennsylvania,  opinion  on 
Breckinridge  bill,  136. 

Lyon,  of  Kentucky,  opinion  on 
Breckinridge  bill,  136-137. 

McKinley,  President,  42,  note  14. 

Maclay,  of  Pennsylvania,  opinion 
on  formation  of  legislative  coun- 
cil for  Louisiana,  107,  on  slavery 
in  Louisiana,  129. 

McLemore  resolutions,  5,  note  13. 

Macon,  of  North  Carolina,  opinion 
on  form  of  government  for  Lou- 
isiana, 137;  on  admission  of  new 
territory  to  Union,  181,  on  Or- 
leans Territory  statehood  bill, 
186. 

Madison,  James,  cited  on  admis- 
sion of  Missouri  into  the  Union, 
48;  comment  on  President's 
message  announcing  ratification 
of  the  treaty,  49;  instructions 
regarding  rights  of  inhabitants 
of  acquired  territory,  66-67; 
quoted  on  provision  concerning 
commercial  privileges  in  Louis- 
iana Treaty,  79-80,  on  form  of 
government  for  Louisiana,  100; 
action  regarding  West  Florida, 
172-173. 

Magruder,  A.  B.,  opinion  on  expan- 
sion of  territory,  37,  note  1,  62, 
note  2;  agent  bearing  Louisiana 
State  Constitution  and  West 
Florida  memorial  to  President, 
190. 

Marbois,  B.,  expression  of  French 
apprehension  for  French  West 
Indies,  33. 

Marhury  vs.  Madison,  significance 
of  decision  of  Supreme  Court, 
61. 

Marshall,  Chief  Justice,  approval 
of  Constitutional  right  to  acquire 


territory,  35;  opinion  concern- 
ing writ  of  habeas  corpus,  169. 

Mason,  S.  T.,  cited  on  Ross  resolu- 
tions, 12. 

Memorial  to  Congress  against  Clai- 
borne, 153-162;  bearers  of,  to 
Washington,  155,  156,  161,  162; 
resolution  submitted  in  the 
House,  160;  bill  passed  in  the 
Senate,  160-161. 

Mexican  War,  175,  note  18. 

Mexico,  196. 

Miller,  of  Tennessee,  opposed  to 
admission  of  Orleans  Territory, 
181. 

Mississippi,  The,  efforts  ot  Execu- 
tive and  Congress  toward  secur- 
ing of  rights  of  Americans  on, 
and  of  establishment  of  as  boun- 
dary line  between  United  States 
and  Louisiana,  9-11;  the  Ross 
resolutions,  11;  plan  of  Attor- 
ney General  Lincoln,  17. 

Mississippi  Territory,  introduction 
of  slaves  forbidden,  from  with- 
out the  United  States,  102,  note 
6;  annexation  to,  of  Upper  Lou- 
isiana, 126. 

Mitchell,  N.,  of  Massachusetts,  re- 
view of  the  Louisiana  question, 
144r-146. 

Mitchell,  of  New  York,  opinion  on 
resolution  requesting  documents 
from  President,  51,  on  right  to 
acquire  territory,  64-65;  on 
preparation  of  people  of  terri- 
tories for  statehood,  72,  on  power 
to  make  citizens  under  Louisiana 
Treaty,  73,  on  constitutionality 
of  Art.  7  of  Louisiana  Treaty, 
78,  on  power  of  the  Executive, 
87 ;  on  amendment  of  Orleans 
Territory  Statehood  bill,  187. 


[243] 


Index 


Mobile,  establishment  of  district 
and  port  of  entry,  41. 

Monroe,  J.,  appointed  as  minister 
extraordinary  and  plenipoten- 
tiary to  France  and  to  Spain,  9 ; 
offered  position  as  governor  of 
Orleans  Territory,  152. 

Moore,  quoted  on  status  of  ports  in 
acquired  territory,  40,  note  9. 

Morris,  G.,  opinion  in  connection 
with  Eoss  resolutions,  12;  reply 
to  H.  W.  Livingston  as  to  intent 
of  framers  of  the  Constitution 
on  acquisition  of  territory,  31- 
32,  44,  45.  • 

Napoleon,  25. 

Naturalization,  law  of,  133,  141. 

Nelson,  of  Virginia,  opinion  on 
Johnson's  amendment  to  Louis- 
iana statehood  bill,  192. 

Netherlands,  reciprocity  relations 
with,  81. 

Neuville,  H,  de,  French  minister  to 
United  States,  complaint  of  dis- 
crimination against  ships  of 
France,  81-83. 

New  England,  hostility  to  Louis- 
iana purchase,  32,  33,  70,  75,  77, 
80,  129,  184,  186;  champion  of 
the  ''compact  theory,"  178. 

New  England  Repertory,  cited  on 
form  of  government  for  Louis- 
iana, 146. 

New  Jersey  Plan,  bearing  on  con- 
stitutional right  to  acquire  terri- 
tory, 15. 

New  Orleans,  purchase  of,  object 
of  negotiation  with  France,  9, 
10,  18;  merchants'  memorial  to 
House  of  Representatives,  134; 
resignation  of  French  mayor, 
149. 


New  York  Herald,  cited  on  the 
Breckinridge   bill,   146. 

Nicholas,  W.  C,  opinion  on  acqui- 
sition of  territory,  26-27;  Jeffer- 
son's reply,  27-28;  opinion  on 
treaty-making  power,  58,  on 
Adams'  resolutions  on  Breckin- 
ridge bill,  103,  on  inhabitants  of 
Louisiana,  107,  on  slavery  in 
Louisiana,  119-120,  on  admis- 
sion of  Upper  Louisiana,  125. 

Nicholson,  of  Maryland,  opinion 
on  resolution  requesting  docu- 
ments from  President,  51;  opin- 
ion on  treaty-making  power  of 
President  and  Senate,  54,  and 
on  invalidity  of  treaty,  54-55; 
traces  historical  support  of  right 
to  acquire  territory,  63-64; 
makes  distinction  between  state 
and  territory,  77-78;  supports 
grant  of  power  to  Executive,  86 ; 
opposed  to  bill  providing  for 
registry    of   vessels,    132. 

''Northern  and  Western  Coali- 
tion,"   146. 

Northwest  Territory,  167. 

Olcott,  S.,  voted  against  Louisiana 
government  bill,  129. 

Ordnance  of  1787,  cited  as  prece- 
dent for  extension  of  power  of 
Executive,  86. 

Orleans,  Territory  of,  name  given 
southern  area  of  Louisiana  Ter- 
ritory, 102;  form  of  govern- 
ment, 102;  salary  of  governor, 
128;  bill  providing  government 
of,  160-161;  population,  170; 
applications  for  statehood,  170- 
171;  petition  for  admission  as  a 
state,  178;  discussion  of  the  bill 


[244] 


Index 


enabling  formation  of  state  gov- 
ernment and  framing  of  consti- 
tution, 178-187;  approval  of,  by 
President,  188;  details  regard- 
ing the  electorate,  and  represen- 
tatives, 188;  conditions  regard- 
ing the  state  constitution,  188- 
189;  election  of  members  of  con- 
stitutional convention,  189 ;  West 
Florida  not  yet  considered  a  part 
of  Orleans  Territory,  189;  adop- 
tion of  constitution  and  of  me- 
morial on  annexation  of  West 
Florida,  190;  adjournment  of 
convention,  190 ;  constitution 
and  memorial  taken  to  President 
Monroe,  190;  President's  mes- 
sage to  Congress  regarding,  191 ; 
difficulty  over  West  Florida,  191- 
193;  passage  of  bill  for  admis- 
sion of  State  of  Louisiana,  193; 
President's  approval,  193;  some 
details  of  bill,  193-194. 

Paine,  T.,  suggestions  concerning 
government  of  Louisiana,  90-91. 

Patterson,  New  Jersey  Plan,  bear- 
ing on  constitutional  right  to 
acquire  territory,    15. 

Pickering,  of  Massachusetts,  opin- 
ion on  status  of  Louisianians 
and  on  constitutional  power  of 
the  Government,  43-44,  47,  56, 
opinion  on  delegate  to  Congress 
from  Louisiana  Territory,  103, 
on  inhabitants  of  Louisiana,  107, 
and  our  treaty  obligation  to- 
wards, 124,  on  settlement  of 
Louisiana,  124. 

Pinckney,  C,  appointed  as  minister 
plenipotentiary  to  Spain,  9; 
bearing  of  draft  on  constitu- 
tional right  to  acquire  territory, 
15. 


Pitkin,  T.,  of  Connecticut,  on  boun- 
dary problems  of  Orleans  Terri- 
tory, 182. 

Plumer,  William,  opinion  on  Mon- 
roe's  appointment  as  minister 
to  France  and  to  Spain,  9;  his 
justification  of  his  vote  against 
Louisiana  Treaty,  13,  note  37; 
criticism  of  President's  antici- 
pation of  congressional  action, 
42,  note  14;  in  favor  of  bill  pro- 
viding for  payment  for  Louis- 
iana, 60;  views  on  constitution- 
ality of  treaty,  60-61;  criticism 
of  bill  providing  for  temporary 
government"  of  Louisiana,  89; 
opinion  on  Adams'  motion  to 
pass  Breckinridge  bill,  103;  com- 
ment on  importation  of  slaves 
into  Louisiana,  120,  note  38; 
voted  against  Louisiana  govern- 
ment bill,  129;  description  of 
French  memorialists  in  Wash- 
ington, 156;  opinion  on  admis- 
sion of  new  states  into  Union, 
161,  on  military  tenure  policy, 
164. 

Poindexter,  interpretation  of  Con- 
stitution in  reply  to  Quincy,  185- 
186,  186,  note  37 ;  amendment  on 
annexation  of  West  Florida  to 
Orleans  Territory,   191. 

Popular  sovereignty  doctrine,  113, 
159. 

Poydras,  J.,  delegate  to  House 
from  Orleans  Territory,  178. 

Prussia,  reciprocity  relations  with, 
81. 

Quesada,  governor  of  Florida,  17. 

Quincy,  Josiah,  charge  against  Jef- 
ferson, 32,  note  44;  speech 
against  Louisiana  statehood  bill, 
183-184,  184,  note  35. 


[245] 


Index 


Ramsay,  D.,  opinion  of  the  Louis- 
iana purchase,  2,  note  2,  62, 
note  2. 

Randolph,  E.,  ''Propositions" 
(Virginia  Plan),  number  ten, 
bearing  on  Constitutional  right 
to  acquire  territory,  14-15. 

Randolph,  J.,  of  Virginia,  motion 
on  Griswold's  resolution,  5,  car- 
ried, 7;  cited  on  powers  of  the 
Executive,  7-8;  description  of 
the  man,  8;  resolution  providing 
for  carrying  into  effect  the 
treaty  of  cession  and  its  con- 
ventions, 50;  opposes  G.  Gris- 
wold's resolution  requesting  doc- 
uments from  President,  50;  re- 
plies to  G.  Griswold's  objections 
to  treaty-making  poAver  exercised 
by  President,  53;  champions 
right  to  acquire  territory,  63; 
opinion  on  rights  of  inhabitants 
of  acquired  territories,  73-74; 
cites  Treaty  of  London,  Art.  3, 
on  port  preferences,  79;  opinion 
on  extent  of  Executive's  power, 
85-86,  and  amendment  proposed, 
88;  report  on  memorial  against 
Claiborne,   159-160. 

Republic,  doctrine  as  to  limitation 
of  area,  62. 

Bhea,  J.,  president  of  West  Florida 
convention,  172;  favored  admis- 
sion of  Orleans  Territory,  181; 
opinion  on  division  of  Orleans 
Territory,  181. 

Robelot,  report  against  Claiborne, 

154. 
Rodney,    of   Delaware,   opinion    on 

right  to  acquire  territory,  64,  on 

granting  of  power  to  Executive, 

88. 


Ross,  of  Pennsylvania,  resolutions 
on  forcible  acquisition  of  terri- 
tory desired,  11-12;  suspicion 
regarding,  11,  note  26. 

Rutledge,  of  South  Carolina,  cited 
on  Griswold's  resolution,  5. 

San  Domingo,  slave  revolt  in,  108, 
and  note  18. 

Sauve,  P.,  bearer  of  memorial  to 
Congress,   155,  156,  161-162. 

Secret  Session,  act  of  Congress 
passed  in,  13. 

Shackleford,  of  Missouri,  on  the 
McLemore  resolutions,  5,  note  13. 

Sheffey,  of  Virginia,  on  admission 
of  Orleans  Territory,  180,  181. 

Slavery,  status  of,  in  Louisiana 
Territory,  94,  102,  in  Ohio,  109, 
in  Georgia,  114,  117,  in  South 
Carolina,  112,  and  note  24,  116; 
in  the  Constitution,  119;  debate 
and  provisions  concerning,  107- 
120,  141-142;  opinion  of 
Mitchell  regarding,  144-145;  as 
treated  in  memorial  to  Congress, 
159 ;  slaves  brought  in  by  French 
immigrants,  170,  note  1. 

Sloan,  of  New  Jersey,  support  of 
bill  providing  for  registry  of 
vessels,  132;  on  right  of  Louis- 
ianians  to  elective  franchise,  138; 
amendment  prohibiting  admis- 
sion of  slaves. 

Smilie,  of  Pennsylvania,  cites  de- 
bate on  British  Treaty,  6,  50; 
opinion  on  right  to  acquire  ter- 
ritory, 70,  on  obligation  towards 
inhabitants  of  Louisiana,  70-71, 
138,  on  amendment  to  Orleans 
Territory  statehood  bill,  187. 

Smith,  I.,  of  Vermont,  stand  on 
slavery  provision  in  Louisiana 
government  bill,   112,   115. 


[246] 


Index 


Smith,  J.,  opinion  on  movement  of 
Americans  into  Spanish  terri- 
tory, and  advice  regarding  Flor- 
ida, 12,  note  30. 

Smith,  J.,  of  Ohio,  favored  dele- 
gate to  Congress  from  Louisiana 
Territory,  103 ;  opinion  on  slav- 
ery, 108-109,  110,  on  government 
of  Upper  Louisiana,  122;  sug- 
gestion to  annex  Upper  Louis- 
iana to  Mississippi  Territory, 
126. 

Smith,  K.,  Secretary  of  the  Navy, 
opinion  on  control  of  emigration 
to  ceded  territory,  24,  note  24; 
opinion  on  Jefferson's  plan  for 
Louisiana,   39. 

Smith,  S.,  of  Maryland,  cites  Brit- 
ish Treaty  of  1794  as  precedent 
for  approval  of  Griswold's  mo- 
tion, 5;  favored  a  delegate  to 
Congress  from  Louisiana  Terri- 
tory, 103;  opinion  regarding  in- 
habitants of  Louisiana,  107,  on 
slavery,  112,  114,  118,  on  first 
Hillhouse  amendment  to  Louis- 
iana government  bill,  114,  on 
Sec.  8  of  the  bill,  124,  on  annex- 
ation to  Indiana  Territory,  126. 

South  Carolina,  slaves  in,  112,  and 
note  24,  116. 

Spain,  claim  to  the  Floridas,  4. 

Spanish-American  War,  59. 

State  and  territory,  distinction  be- 
tween, basis  of  constitutional 
controversy,  75,  77,  80. 

Statehood,  preparation  of  people 
of  territories  for,  72. 

States'  rights,  doctrine  of,  63,  64. 

Stone,  of  North  Carolina,  opinion 
on  slavery,  129;  voted  against 
Louisiana  government  bill,   129. 


Sumter  (''Sumpter"),  T.,  of 
South  Carolina,  considered  by 
Jefferson  for  appointment  as 
governor  of  Louisiana,  90,  note 
29. 

Sweden,  reciprocity  relations  with, 
81. 

Tait,  G.,  of  Georgia,  reports  House 
bill  on  West  Florida,  177. 

Taylor,  J.,  interpretation  of  Con- 
stitution on  Government's  right 
and  means  of  acquiring  territory, 
57;  opinion  as  to  obligation 
toward  inhabitants  of  acquired 
territory,  67-68,  and  note  13. 

Territory  of  Orleans,  name  given 
southern  area  of  Louisiana  Ter- 
ritory, 102.  See  Orleans,  Terri- 
tory of. 

Texas,  196. 

Thacher,  of  Massachusetts,  ap- 
proves resolution  requesting  doc- 
uments from  President,  51. 

Tracy,  of  Connecticut,  opinion  on 
rights  of  inhabitants  of  acquired 
territory,  68-69,  on  matter  of 
commercial  privileges  in  Louis- 
iana Treaty,  75. 

Treaty  of  London,  cited  by  John 
Eandolph  in  regard  to  port  privi- 
leges, 79. 

Treaty  of  Peace  with  Great  Brit- 
ian,  in  1783,  Art.  4,  cited  as 
precedent,  54,  55. 

Treaty  of  1794  with  Great  Britain, 
Art.  2  cited  as  precedent  for  ad- 
mitting aliens  to  citizenship  by 
treaty  stipulation,  73. 

Treaty  of  1795,  precedent  in,  for 
boundary  decision,  182. 

Turner,  P.  J.,  cited  on  effect  of 
Louisiana  purchase  on  the  Con- 
stitution,  2. 


[247] 


Index 


Upper  Louisiana  (District  of  Lou- 
isiana), settlement  of,  opinions 
thereon,  98-99,  121,  122,  123, 
124,  144,  145;  debate  on  Sec.  8 
providing  form  of  government 
for,  121-126;  principal  provis- 
ions of  Sec.  8,  121-122;  number 
and  character  of  inhabitants, 
123;  proposals  of  annexation  of, 
to  Indiana  Territory,  126-127,  to 
Mississippi  Territory,  127;  au- 
thority of  government  of  Indiana 
Territory  extended  to,  127. 

Varnum,  of  Massachusetts,  cited 
on  Sec.  2  of  Breckinridge  bill, 
87,  on  bill  providing  for  registry 
of  vessels,  132,  on  See.  4  of 
Breckinridge  bill,  135-136. 

Venable,  A.  B.,  interpretation  of 
Constitution  on  slavery,  119; 
suggestion  as  to  government  of 
Upper  Louisiana,  126. 

Virginia  Plan.  See  Eandolph,  E., 
' '  Propositions. ' ' 

Washington,  President,  7,  note  17. 

Webster,  D.,  196. 

West  Florida,  independence  of, 
and  application  for  admission 
to  Union,  171-172;  possession 
taken  by  United  States,  173 ;  an- 
nexation to  Orleans  Territory, 
174;  bill  on  extension  of  laws  of 
Orleans  to  Eiver  Perdido,  174; 
constitutional  issues,  174-176; 
passage  of  Enabling  Act,  178; 
not  represented  in  constitutional 
convention  of  Orleans  Territory, 
189;  memorial  regarding  annex- 
ation to  Oi-leans  Territory,  pre- 
sented to  House,  192;  Johnson 
and  Gholson  amendments,  191, 
192-193 ;  Gholson  amenrlment 
passed,  193;  passage  of  bill  pro- 


viding for  inclusion  of,  in  State 
of  Louisiana,  194;  provisions  of 
bill,  194-195,  accepted  by  Louis- 
iana State  Legislature,  195. 

Wheaton,  of  Massachusetts,  on  ad- 
mission of  Orleans  Territory, 
180. 

White,  of  Delaware,  argument  on 
constitutional  right  to  acquire 
by  treaty,  55-56;  opposition  to 
delegate  to  Congress  from  Louis- 
iana Territory,  103;  opinion  on 
slavery.  111. 

Willoughby,  W.  W.,  49,  note  1; 
criticism  of  President  McKinley, 
42,  note  14. 

Wilkinson,  J.,  General,  appointed 
commissioner  to  receive  ceded 
territory,  92;  appointed  military 
governor  of  Upper  Louisiana, 
165-166. 

Wirt,  Attorney  General,  statement 
on  the  Louisiana  purchase,  30. 

Workman,  J.    See  "Laelius. " 

Worthington,  of  Ohio,  amendment 
authorizing  election  of  delegate 
to  Congress  from  Louisiana,  103, 
104;  comment  on  separation  of 
w^estern  from  eastern  states,  121; 
introduces  bill  for  settlement  of 
Orleans  Territory  based  on  mili- 
tary tenure,  164. 

Wright,  of  Maryland,  opinion  on 
slavery,  120;  claim  of  constitu- 
tional distinction  between  states 
and  territories,  124;  advocate  of 
See.  8  of  Louisiana  government 
bill,  124;  approval  of  union  of 
Upper  Louisiana  and  Indiana 
Territory,  126;  opinion  on  divi- 
sion of  territory  of  Orleans,  181, 
on  Orleans  Territory  statehood 
bill,  186. 


[248] 


